Punjab-Haryana High Court
Abb India Ltd vs Patiala Locomotive Works on 14 November, 2024
Neutral Citation No:=2024:PHHC:149167
ARB-371-2023(O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
248 ARB-371-2023(O&M)
Date of decision: 14.11.2024
ABB INDIA LTD ....APPLICANT
Vs.
PATIALA LOCOMOTIVE WORKS ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. Manish Kumar and
Mr. Yash Pal Gupta, Advocate
for the applicant.
Mr. Vinish Singla, Advocate and
Mr. Alankrit Bhardwaj, Advocate
for the respondent.
****
JAGMOHAN BANSAL, J (ORAL)
1. Through instant application under Section 11of the Arbitration and
Conciliation Act, 1996 (for short '1996 Act'), the applicant is seeking
appointment of Arbitral Tribunal.
2. The applicant and respondent entered into agreement by way of
four different purchase orders. There is Arbitration Clause in the General
Conditions of Contract which forms part of purchase orders. As per said Clause,
there would be a sole Arbitrator in case of dispute between the parties. The
respondent, by way of circular, enjoined that three retired Railway Officers
would form Arbitral Tribunal. The applicant served notice dated 29.07.2023
upon respondent invoking Arbitration Clause. The applicant proposed a retired
Judge of Supreme Court as an Arbitrator. The respondent did not agree to that.
As per the respondent, only retired officials of Railway can be appointed as
Arbitrators.
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3. Mr. Vinish Singla and Mr. Alankrit Bhardwaj, Advocates submit that
circular issued by respondent is part of agreement, thus, only retired officials of
Railways can be appointed as Arbitrators. The Arbitral Tribunal shall consist of
three Members. They are not disputing the Arbitration Clause and dispute between
the parties, however, they are disputing composition of Arbitral Tribunal. The
Railways have entered into contract with ABB India Ltd., thus, they do not
recognize any other entity with whom ABB India Limited has entered into an
agreement.
On instructions from Sh. Ramesh Kumar Kaul, Dy. Chief National
Manager, Patiala, Mr. Vinish Singla and Mr. Alankrit Bhardwaj, Advocates further
submit that this Court may be pleased to constitute an Arbitral Tribunal
consisting of three Members, out of which one member should be of technical
background and another that of accounts.
4. Counsel for the applicant agrees to the constitution of Tribunal
consisting of three members, however, prays that members should be
independent and not as per choice of the respondent. He further submits that he
leaves it to this Court to nominate three members to constitute an Arbitral
Tribunal.
5. In view of recent judgment of Five Judges Bench of Supreme Court
in 'Central Organisation for Railway Electrification v. ECI SPIC SMO
MCML (JV) A Joint Venture Co.', 2024 SCC OnLine SC 3219, the Railways-
respondent cannot make unilateral appointment. The appointment in such
circumstances needs to be made by High Court or Supreme Court.
6. The Agreement is not disputed between the parties. Service of notice
under Section 21 of 1996 Act is also not disputed. The dispute is confined to
composition of Arbitral Tribunal.
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ARB-371-2023(O&M) -3-
7. In view of pleadings and arguments of both sides, this Court is of
the considered opinion that one technical person, one Chartered Accountant and
a retired Judge of Supreme Court should be members of Arbitral Tribunal.
8. Mr. Justice Adarsh Kumar Goel, retired Judge of Supreme Court of
India, residing at C-2/24, Safdarjung Development Area, New Delhi-110016,
Mobile No.9910213040, Sh. Ashok Kumar Agarwal, retired GM, ICF, residing
at E-502, LA Lagune, Sector-54, Golf course Road, Gurugram, HR-122002,
Mobile No.9717873000 and Sh. Krishan Vrind Jain, Chartered Accountant,
residing at House No. 1139, Block-B, IT City, Sector 82-A, Mohali-160055,
Mobile No.9417009490 are hereby appointed as members of Arbitral Tribunal to
adjudicate the dispute between the parties, subject to compliance of statutory
requirements. The learned members of Arbitral Tribunal are requested to comply
with mandate of Section 12 of 1996 Act before proceeding further.
9. Parties are directed to appear before the learned Arbitral Tribunal on
date, time and place to be fixed by the learned Tribunal at its convenience.
10. The members of the learned Tribunal shall be paid fee in
accordance with the Fourth Schedule of the 1996 Act, as amended.
11. The learned Tribunal is requested to complete the proceedings as
per time limit specified under Section 29-A of the 1996 Act.
12. Needless to mention, parties would be at liberty to raise all the
claims/defences/counter claims/pleas before the learned Tribunal. Any
observation made hereinabove will not be binding on the learned Tribunal.
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13. A request letter along with copy of this order be sent to Mr. Justice
Adarsh Kumar Goel, retired Judge of Supreme Court of India, Sh. Ashok Kumar
Agarwal, retired GM, ICF and Sh. Krishan Vrind Jain, Chartered Accountant.
14. Disposed of.
15. In view of statement of both sides, it is hereby clarified that
venue/seat of the learned Tribunal shall be at Chandigarh.
16. Pending miscellaneous application(s), if any, shall also stand
disposed of.
14.11.2024 [JAGMOHAN BANSAL]
manoj JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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