M/S Shiv Enterprises vs Managing Director ,Hafed And Anr
2022 Latest Caselaw 10430 P&H

ARB Nos.200 and 201 of 2017 (O&M)                           1

217+218

     IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

1.                           ARB No.200 of 2017 (O&M)
                             Date of Decision: 05.09.2022

M/s Shiv Enterprises                               ......Petitioner

      Vs

Managing Director, The Haryana State Co-operative Supply
and Marketing Federation Ltd. (HAFED) and another
                                      .....Respondents

2.                           ARB No.201 of 2017 (O&M)

M/s Shiv Enterprises                               ......Petitioner

      Vs

Managing Director, The Haryana State Co-operative Supply
and Marketing Federation Ltd. (HAFED) and another
                                      .....Respondents

CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Robin Dutt, Advocate
        for the petitioner.

        Mr. Sudeep Mahajan, Advocate and
        Mr. Saachi Mahajan, Advocate
        for the respondents.

           ****

RAJ MOHAN SINGH, J.(Oral) [1]. Vide this common order, ARB No.200 and 201 of 2017

(O&M) are being decided as the issue involved in both the

cases is same. For brevity, the facts are being culled out from

ARB No.200 of 2017 (O&M).

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[2]. Petitioner(s) has preferred these petitions under

Section 11 of the Arbitration and Conciliation Act, 1996

(hereinafter to be referred as 'the Act') for the appointment of an

independent sole Arbitrator.

[3]. Learned counsel for the petitioner submits that the

petitioner is a proprietor firm and dealing with shelling/milling of

the paddy. A contract agreement was entered into between the

parties on 03.10.2012 for the purposes of milling of paddy as

per clause 10 of Haryana Rice Procurement (Levy) Order 1985.

[4]. Learned counsel further submits that the contract

agreement has an arbitration clause No.23. Proviso to the

aforesaid clause provides that any demand for arbitration in

respect of any claim(s) of the miller, under the contract shall be

in writing and made within one year of the date of completion or

expiry of the period of contract. If the demand is not made

within the period, the claim(s) of the miller shall be deemed to

have been waived off and released of all liabilities under the

contract in respect of these claims. The cost for and in

connection with arbitration shall be the discretion of the

arbitrator, who may make suitable orders in his award. Clause

19 of the agreement does not prescribe any period for which the

contract agreement shall remain in force, rather it prescribes

that agreement shall remain in force (column blank) or

clearance of dues whichever is later.

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[5]. Learned counsel for the respondents however places

reliance upon clause 7(iv) of the agreement to submit that miller

shall complete delivery of rice due to Govt./Agency on the total

quantity of paddy issued to him within 10 days of the issuance of

paddy by way of Release Order. Rice against entire stock kept

in his mill shall be delivered not later than the 31st March, 2013

as per schedule given therein.

[6]. Perusal of the aforesaid clause does not show the

period for which the agreement shall remain in force, rather the

proviso to arbitration clause prescribes that the demand for

arbitration shall be made in writing within one year from the date

of completion or expiry of the period of contract.

[7]. Admittedly, the petitioner has already invoked the

clause for which no expiry date has been given in the

agreement. In view of Perkins Eastman Architects DPC and

another vs. HSCC (India) Limited, (2020) 20 SCC 760 and

TRF Limited vs. Energo Engineering Projects Limited,

(2017) 8 SCC 377, the authority of Managing Director to

nominate the Arbitrator, who may be otherwise eligible and

respectable person is negated in view of ineligibility of such

Arbitrator arising out of Section 12(5) of the amended Act of

2015. The Managing Director is statutorily ineligible to nominate

any person as an Arbitrator in view of ratio of the aforesaid

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judgments. Existence of arbitral clause in the agreement is not

in dispute. In view of aforesaid arbitration dispute arisen

between the parties, an independent Arbitrator can be

appointed.

[8]. Keeping in view the facts and circumstances of the

case, I deem it appropriate to appoint Sh. Kunal Vinayak,

Advocate H.No.538, Phase-1, Mohali, Mob. No.9569884926,

9876511277, email id: [email protected] as the sole

Arbitrator in both the cases, to resolve the dispute/difference

between the parties. The appointment of the Arbitrator shall be

subject to the declaration to be made by him as required under

Section 12 of Arbitration and Conciliation Act, 1996 in respect of

his independence and impartiality to settle the dispute between

the parties.

[9]. The Arbitrator shall complete the proceedings within

specified time in terms of Section 29-A of the said Act. The

Arbitrator shall be paid fee in accordance with the 4th Schedule

of the Act as amended from time to time. The fee shall be borne

by parties in equal proportion.

[10]. A copy of this order be dispatched to the Arbitrator at

the following address:-

Sh. Kunal Vinayak, Advocate H.No.538, Phase-1, Mohali, Mob. No.9569884926, 9876511277, email id: [email protected]

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[11]. Both the petitions stand disposed of accordingly.

                                          (RAJ MOHAN SINGH)
September 05, 2022                              JUDGE
Atik
Whether speaking/reasoned     Yes/No
Whether reportable            Yes/No




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