Patna High Court
M/S Binod Construction vs The Union Of India on 12 January, 2024
Author: Chief Justice
Bench: Chief Justice
IN THE HIGH COURT OF JUDICATURE AT PATNA
REQUEST CASE No.96 of 2023
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M/s Binod Construction through its proprietor-Binod Kumar Singh, Gender
Male, age about 55 years, son of Bikramadity Singh, Resident of B12,
Shivlok Colony, Raipur Road, Ladpur, Dehradun, Uttarakhand.
... ... Petitioner/s
Versus
1. The Union of India through, Chairman, Railway Board, New Delhi.
2. The General Manager, East Central Railway, Hazipur, Vaishali, Bihar.
3. The Divisional Railway Manager, East Central Railway, Danapur, Patna.
4. The Divisional Engineer (HQ), East Central Railway, Danapur, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Krishna Mohan Mishra, Advocate
Mr.Prasoon Kumar, Advocate.
For the Respondent/s : Mr. Kumar Priya Ranjan, CGC
Mr. Sandeep Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date : 12-01-2024
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 24.09.2019 (Annexure-1). The said agreement
contains an arbitration Clause- 81.(1) and 81.(3). The petitioner
invoked the said arbitration clause vide communication dated
10.05.2023
(Annexure-4) and notice dated 19.06.2023
Patna High Court REQ. CASE No.96 of 2023 dt.12-01-2024
(Annexure-5), 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
should be from the Indian Railways (Accounts) Service. It is,
hence, the petitioner was issued with a panel of four names, as
per letter dated 05.12.2023, produced as Annexure-G along with
Patna High Court REQ. CASE No.96 of 2023 dt.12-01-2024
the counter affidavit.
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 not only filed the communication regarding the
panel as Annexure-G, but provided the entire panel in the
counter affidavit as produced at Annexure-F.
9. In this circumstances, 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. 11 and 24 from Annexure R/F.
Hence, Shri Bharat Prasad Gupta (IRSE) Retd. CAO/C/N/ECR
Patna High Court REQ. CASE No.96 of 2023 dt.12-01-2024
and Shri Rakesh Goyal, (IRSE) Retd. Addl. Member (CE)/Rly.
Board are 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)
Sujit/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 18.01.2024
Transmission Date
