Patna High Court
M/S Sahil Projects- Prachi (Jv) vs The Union Of India on 2 February, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
REQUEST CASE No.84 of 2023
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M/s Sahil Projects- Prachi (JV) a partnership firm registered under the Indian
Partnership Act, 1932 having its registered office at 104, Sachhi Palace,
Sahdeo Mahto Marg, Boring Road, Patna, Bihar through its authorized
representative Shri Brajesh Mishra, Son of Jangbahadur Mishra, aged about
48 years, Gender- Male, resident of 104, Sachhi Palace, Sahdeo Mahot Marg,
Boring Road, Patna, Bihar.
... ... Petitioner/s
Versus
1. The Union of India through the General Manager, East Central Railway
having its office at Mahendru Ghat, 1st Floor, Patna- 800004.
2. The Chief Administration Officer (Con.), Mahendru Ghat, 1st Floor, Patna-
800004.
3. The Chief Engineer (Con.)/ North, East Central Railway (Construction
Organization), Mahendru Ghat, 1st Floor, Patna- 800004.
4. The Deputy Chief Engineer (Con./1), East Central Railway (Construction
Organization), Samastipur.
5. The Executive Engineer, (Con.), Saharsa.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Lal Babu Singh, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Kumar Priya Ranjan, CGC
Mr. Sandeep Kumar, Advocate
Mr. Vibhuti Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date : 02-02-2024
Heard learned counsel for the parties.
2. This application has been moved seeking
appointment of an Arbitrator invoking the powers of this Court
under Section 11(6) of the Arbitration and Conciliation Act,
1996.
3. Petitioner and the respondent entered into an
agreement dated 09.03.2017 (Annexure-1). The said agreement
Patna High Court REQ. CASE No.84 of 2023 dt.02-02-2024
2/4
contains an arbitration Clause- 63 and 64. The petitioner
invoked the said arbitration clause vide communication dated
24.12.2021
(Annexure-8) and notice dated 18.05.2022
(Annexure-9), but to no avail.
4. The learned counsel for the petitioner
specifically wants the appointment of a retired judge of the High
Court to be the Arbitrator.
5. It is pointed out that the Hon'ble Supreme
Court has taken a consistent view that, if a party having
responsibility of appointing an arbitrator, does not do so within
30 days of demand being made by the other party, the right to
make an appointment would not be automatically forfeited. The
appointment can still be made, however, before the other party
moves the court under Section 11. Once the dispute is placed
before the Court, the right to appoint ceases to exist. Going by
the dictum of the above decisions, it is argued that the
respondent is, thus, interdicted from making any appointment of
arbitrator as of now.
6. The learned counsel for the respondents,
however, points out that especially when the dispute is with
respect to a value above Rs. 50 lakhs, there should be an
Arbitral Tribunal appointed of three persons, one of whom
Patna High Court REQ. CASE No.84 of 2023 dt.02-02-2024
should be from the Indian Railways (Accounts) Service.
7. The learned counsel for the petitioner
specifically relies on the decisions in Central Organization for
Railway Electrification v. ECL-SPIC-SMO-MCML(JV) A
Joint Venture Company; (2020) 14 SCC 712, Punj LLOYD
vs. Petronet MHB Ltd.; (2006) 2 SCC 638 and Datar
Switchgears Ltd. v. Tata Finance Ltd. & Anr.; (2000) 8 SCC
151.
8. In this context, it has to be noticed that the
respondent has provided the entire panel in the counter affidavit
as produced at Annexure-B.
9. In this circumstance, this Court was inclined
to suggest that two persons may be indicated by the petitioner
and one another person, as has been stated by the learned
counsel for the respondents, to be appointed from the Indian
Railway(Accounts) Service, so as to ensure that an Arbitral
Tribunal is appointed and that experts who are aware of the
nature of work, is dealing with the issue.
10. Faced with this situation, the petitioner
suggested the names at Sl. Nos. 9 and 10 from Annexure-B.
Hence, Shri Bharat Prasad Gupta (IRSE) Retd. CAO/C/N/ECR
and Shri Ratnesh Kumar Bariar, Retd. ED/RITES (IRSE) are
Patna High Court REQ. CASE No.84 of 2023 dt.02-02-2024
appointed as the two members of the Tribunal.
11. The Indian Railways shall, within a period of
two weeks, appoint a person of their choice and intimate the
petitioner. The Arbitral Tribunal shall take up the matter and
decide the issue after issuing notice to the parties and giving
adequate opportunity of hearing.
12. The Request Petition stands disposed of in
the above terms.
13. Interlocutory application, if any, shall also
stand disposed of.
(K. Vinod Chandran, CJ)
P.K.P./-
AFR/NAFR
CAV DATE
Uploading Date 03.02.2024
Transmission Date
