ARBP/33/2018
2021 Latest Caselaw 793 Ori

ARBP No. 33 of 2018

21. 22.01.2021 This matter is taken up by video conferencing mode.

2. Heard Mr. S. Dwibedi, learned counsel for the Petitioner and Er. T. Mishra, learned counsel for the Opposite Party No.1. None appears for the Opposite Party No.2.

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 disputes between the Petitioner and the Opposite Parties arising out of an agreement dated 21st June, 2010 under which the Petitioner was assigned the work for "Construction of Roads in Power Plant".

4. The matter has been pending since 2018. Despite the time being granted both on 9th October, 2020 and later on 27th November, 2020 to the Opposite Party Nos. 1 and 2 to file their respective counter affidavit, they have not done so till date.

5. Today, Er. T. Mishra, learned counsel for the Opposite Party No.1 seeks more time to argue the matter. The Court is not inclined to adjourn the matter in the facts and circumstances of the case.

6. The Court has perused the arbitration clause in the contract as well as the notice issued by the Petitioner nominating its Arbitrator. The notice was sent way back on 12th January, 2018. Although the arbitration clause requires an arbitral tribunal, there is no objection to refer to the dispute to the sole Arbitrator.

7. Learned counsel for the Opposite Party No.1 has raised objection that the contract contains the arbitration clause was required to be stamped in accordance with law and therefore the arbitration clause is not valid. He relied upon the judgment of Supreme Court dated 10th April, 2019 in C.A. No.3631 of 2019 (Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd..)

8. The Court perused the said judgment. It is not understood how the said decision of the Supreme Court would be applicable to the present petition. It is only where the arbitration clause is contained in a document, which is otherwise compulsorily registerable then the question would arise that the arbitration clause cannot be enforced while the agreement itself does not properly stamped. So that question does not arise here. It is nobody's contention that the agreement for construction of a Thermal Power Plant in the present case which contains the arbitration clause is compulsorily registerable. Consequently, the objection on behalf of the Opposite Party No.1 is overruled.

9. All other objections that the Opposite Party No.1 may have, can be raised before the arbitrator to be appointed by the Court. Although the arbitration clause envisages that an arbitral Tribunal, since the parties have failed to act on it and agree to the appointment of a sole Arbitrator, the Court considers it appropriate to appoint Dr. Justice A.K. Mishra, former Judge of this Court as the sole Arbitrator to adjudicate the disputes

between the parties. The arbitration shall take place under the aegis of the High Court of Orissa Arbitration and Mediation Centre.

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

11. As restrictions are continuing for COVID-19, learned counsel for the parties may utilize the 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

S.K.Jena/PA