ARBP/59/2019
2021 Latest Caselaw 791 Ori

ARBP No. 59 of 2019

07. 22.01.2021 1. This matter is taken up by video conferencing mode.

2. Heard Mr. Sidharth Shankar Padhy, learned counsel for the Petitioner and Mr.S. Mishra, learned counsel for the Opposite Parties (Railways).

3. The present petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ('Act') seeks the appointment of an Arbitrator to adjudicate the dispute between the Petitioner and Opposite Parties arising out of an agreement dated 17th June, 2015 under which the Petitioner was assigned with a contract license 'to occupy land for the purpose of cycle/scooter/motor cycle stands at Cuttack Railway Station'.

4. There is an arbitration Clause 26 in the agreement, which has not been denied by the learned counsel for the parties. There is even no denial by the Parties as regards dispute and differences between them arising out of the contract in question. Admittedly, in response to the notice by the Petitioner, the Opposite Parties are yet to appoint an Arbitrator.

5. Relying on the judgment in Central Organization for Railway Electrification v. ECI-SPIC-SMO-MCML (JV) A Joint Venture Company, 2019 SCC OnLine SC 1635, Mr. Mishra, learned counsel appearing for the Railways insists that

it is open to the Railways to appoint a retired employee of the Railway as an Arbitrator.

6. The fact of the matter is that till date no Arbitrator has been appointed by the Opposite Parties. It must be therefore considered that they have forfeited the rights to appoint even a retired employee. Moreover, as rightly pointed out by the learned counsel for the Petitioner that in the aforementioned decision there was a clause in the contract, which was subject matter of the said judgment, which envisaged appointment of a retired employee, if the claim was below a certain amount. There is no such clause as far as the present agreement between the parties is concerned.

7. The clause which permits the Railways to appoint its own employee as Arbitrator can no longer be sustained after the amendment to the Act in 2015. In that view of the matter, the Court has no difficulty in proceeding to appoint an Arbitrator to adjudicate the disputes between the parties.

8. Therefore, the Court appoints Mr. Bidyadhar Mishra, Advocate practising in this Court as the sole Arbitrator to adjudicate the disputes between the parties. The venue of the arbitration shall be at High Court of Orissa Arbitration & Mediation Centre, Cuttack. It is needless to state that the completion of the proceedings shall be in terms of Section 29A of Act and fees of the learned Arbitrator shall be as per the

Fourth Schedule of the Arbitration and Conciliation (Amendment) Act, 2015.

9. The arbitration petition is disposed of accordingly. A copy of this order be communicated to the learned Arbitrator.

10. As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court's website or print out thereof at par with certified copy in the manner prescribed, vide Court's Notice No.4587, dated 25th March, 2020.

( Dr. S. Muralidhar) Chief Justice A.Dash/PS 22nd January,2021.