Punjab-Haryana High Court
M/S Syncotts International vs Punjabi University And Anr on 14 March, 2022
ARB-55-2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH
CM-2860-CII-2022 in and
ARB-55-2022 (O&M)
Date of Decision: March 14, 2022
M/s. Syncotts International ...... Petitioner(s)
Versus
Punjabi University and another ..... Respondent(s)
CORAM:- HON'BLE MRS.JUSTICE LISA GILL
Present: Mr. Shrey Vasudev, Advocate
for the petitioner.
Mr. H.S. Batth, Advocate
for the respondents.
***
LISA GILL, J. (Oral)
Though matters were being taken up through physical hearing
mode today, this matter has been taken up through video conferencing on
specific request of learned counsel and in terms of circular dated 14.09.2021.
CM-2860-CII-2022
Documents Annexures P-14 and P-15 annexed alongwith the
application, are taken on record, subject to just exceptions.
Application is disposed of.
ARB-55-2022
Prayer in this petition under Section 11(6)(c) of the Arbitration
and Conciliation Act, 1996 (for short - 'the Act') is for appointment of sole
independent Arbitrator for resolution of disputes and differences arising out
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of contract agreement dated 06.03.2013, Annexure P-1, executed between
the parties.
Contract agreement dated 06.03.2013 was entered into between
the parties for construction of synthetic athletic tracks at Punjabi University,
Patiala. Work was completed successfully, which was duly certified by
IAAF in September, 2015 and was handed over to respondent no.1-
University. Thereafter, dispute arose between the parties regarding the
payment. Legal notice dated 16.07.2018 (Annexure P-7) was issued. Civil
suit for recovery was filed by the applicant before the learned Civil Judge
(Junior Division), Patiala. The applicant filed an application under Order 8
Rule 10 read with 151 CPC while the respondents filed an application under
Sections 5 & 8 of the Arbitration and Conciliation Act, 1996. Learned Civil
Judge (Jr. Division), Patiala allowed the application filed by the respondent
and vide order dated 16.04.2021 (Annexure P-8) directed that as the matter
involved an arbitrable dispute with there being a specific arbitration clause
in the contract agreement, the matter should be referred to the arbitrator.
The file was accordingly consigned to record.
It is submitted that the respondent took no steps for
appointment of an arbitrator. The applicant thus issued notice dated
27.10.2021 proposing the appointment of Mr. S.P. Arora as the sole
Arbitrator. In reply thereto, the respondents vide communication dated
17.12.2021, it is stated, refused to accept the said Arbitrator claiming it to be
against the terms and conditions of the agreement and ultimately the
applicant received notice dated 24.12.2021 (Annexure P-9) from Mr.
Parminder Singh Bhogal, stating that he had been appointed as the sole
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Arbitrator by the Vice Chancellor of respondent no.1. Reference has been
made to subsequent communication dated 28.12.2021 by the applicant
raising objections to the unilateral appointment of the Arbitrator as well as
legal notice, Annexure P-12.
Heard learned counsel for the parties.
Existence of an arbitral dispute between the parties is not
denied and neither is the existence of the clause for arbitration in the
agreement. Clause 25 of the agreement provides for resolution of disputes
through arbitration. Clause 25(V & VI) read as under:-
V. All disputes or differences in respect to which the decision is not
final and conclusive shall all the request of either party made in a
communication sent through registered A.D. post be referred to the
sole arbitration of the Executive Engineer Department. Building and
Roads Branch acting as such at the time of reference unless debarred
from acting as an Arbitrator by an order of the University in which
event, the Vice-Chancellor shall appoint any other technical officer
not below the rank of S.E. to act as an arbitrator on receipt of a
request from either party.
VI. Vice Chancellor shall have the authority to change the arbitrator
on an application by either the contractor of the Engineer-in-Charge
requesting change of the arbitrator giving reasons thereof, either
before the start of the arbitration proceedings or during the course of
such proceedings. The arbitration proceedings would stand suspended
as soon as an application for change or Arbitrator filed before the Vice
Chancellor and a notice thereof is given by the applicant to the
Arbitrator. The Vice Chancellor after hearing both the parties may
pass a speaking order rejecting the application or accepting to change
the Arbitrator simultaneously, appointing a technical officer not below
the rank of a Superintending Engineer as Arbitrator under the
Contract. The new Arbitrator so appointed may enter upon the
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reference a fresh or he may continue the hearings from the pint these
were suspended before the previous Arbitrator.
Learned counsel for the respondents is unable to deny that after
passing of order dated 16.04.2021 by the learned Civil Judge (Jr. Division),
Patiala, the Arbitrator was not appointed immediately or even within 30 days
of issuance of the notice dated 27.10.2021. Furthermore, in view of the
judgment of the Hon'ble Supreme Court in Perkins Eastman Architects DPC
and another Vs. HSCC (India) Ltd., 2019 SCC Online SC 1517 and TRF Ltd.
Vs. Energo Engineering Project Ltd. 2017 AIR (SC) 3889, unilateral
appointment of the Arbitrator by the respondent is not sustainable. Learned
counsel for the respondents, however, submits that the dispute involved is
technical and it is only an Expert who can deal with the matter. Learned
counsel refer to order dated 09.12.2016 passed in ARB-07-2016 and
09.10.2020 in ARB No.94 of 2020, to submit that the present is a similar
matter.
Keeping in view the facts and circumstances of the case, I do
not find any impediment in the appointment of a sole independent Arbitrator
in this case. Unilateral appointment of the Arbitrator by the respondent in the
manner as aforementioned cannot be an impediment thereto.
Keeping in view the facts and circumstances of the case, this
petition is disposed of, by referring the entire disputes and differences
between the parties arising out of agreement dated 06.03.2013 to the
President of the Institution of Engineers (India).
14.03.2022 (LISA GILL)
Sunil JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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