Punjab-Haryana High Court
S.P. Singla Constructions Pvt Ltd vs State Of Haryana And Others on 18 November, 2024
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -1-
CR -78-2024 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
112 ARB-337-2017 (O&M)
Reserved on :09.09.2024
Date of Decision:18.11.2024
SP Singla Constructions Pvt. Ltd.
... Petitioner
Vs.
State of Haryana and others
... Respondents
112-2 CR-78-2024
SP Singla Constructions Pvt. Ltd.
... Petitioner
Vs.
The Chief Engineer, World Bank
Project-II, Haryana and another ... Respondents
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present: Mr. Anirudh Wadhwa, Advocate (through V.C.)
Mr. Gurmohan Singh Bedi, Advocate
Mr.Pawandeep Singh, Advocate
Mr. Anand Vardhan Khanna, Advocate
Mr. Kartik Gupta, Advocate
Mr. Rahul Rohilla, Advocate for the petitioner.
Mr. Aman Bahri, Addl. A.G. Haryana.
Mr. Vicky Chauhan, Advocate for
Mr. Deepak Balyan, Advocate
for respondent No.3 in ARB-337-2017.
SUVIR SEHGAL J.
1. This order shall dispose of both the above noted petitions
as they involve common question of law and facts.
1 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -2-
CR -78-2024 (O&M)
2. For the sake of convenience, factual position is being
taken from ARB-337 of 2017.
3. This petition has been filed under Section 11 of the
Arbitration and Conciliation Act, 1996 (for short 'the Arbitration Act')
for constitution of an independent and impartial Arbitral Tribunal.
4. Counsel for the petitioner submits that a bid submitted by
the petitioner for construction of a four lane railway over bridge at
Level Crossing No. 61-A on Delhi Bathinda Railway Line (hereinafter
referred to as 'the Project') was awarded to the petitioner vide letter
dated 30.07.2006, Annexure P-2, at a contract price of Rs.22.34 crores
and the petitioner furnished, Performance Security to the respondents
for an amount of Rs.1,11,75,000/-.
5. He submits that although the project was required to be
completed within 15 months but there were continuous delays and the
petitioner sent a chain of letters appended at Annexure P-3, to the
respondents requesting them to increase the contract price and
compensate it and by letter dated 04.02.2009, Annexure P-4,
respondents were requested to appoint a Conciliator for an amicable
settlement. Counsel submits that the project was completed on
31.03.2009 and by letter dated 10.09.2009, Annexure P-7, respondents
intimated that the request for conciliation has not been approved and
that the petitioners may initiate the process of appointment of
Arbitrator as per methodology agreed upon between the parties under
Clause 25.3, Annexure P-5, of the General Conditions of the Contract.
2 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -3-
CR -78-2024 (O&M)
Counsel submits that the petitioner nominated Sh. O. P. Goyal as its
Arbitrator and the respondents appointed Sh. H.R. Raheja, a serving
officer of the respondents and Sh. R.K. Aggarwal, Enginner-in-Chief
(Retd.) PWD (B&R) was appointed as the Presiding Officer. Counsel
submits that after expressing doubts about the impartiality of the
Tribunal by its communication, Annexure P-11, petitioner approached
this Court by filing a petition (ARB-77 of 2010), for appointment of
an impartial arbitrator on behalf of the respondents but the petition
was dismissed vide order dated 14.07.2011, Annexure P-12. He
submits that SLP and review preferred by the petitioner were
dismissed vide order dated 07.12.2012 and 13.03.2013, Annexure P-
14 and P-17, respectively. By referring to the proceedings, Annexure
P-19, counsel submits that the Arbitral Tribunal continued with the
proceedings but no effective hearing took place. In the meantime, the
Arbitration Act was amended and as Section 12(5) was inserted on
23.10.2015, the petitioner submitted an application before the Arbitral
Tribunal requesting the arbitrators to file a certificate of disclosure in
terms of the amended provision, but the application was disposed of
by the Arbitral Tribunal vide its order dated 15.01.2016, Annexure P-
22. Counsel submits that the petitioner filed a petition under Sections
14 and 15 of the Arbitration Act before the learned District Judge,
Chandigarh and despite multiple requests by the petitioner, the
Arbitral Tribunal continued with the proceedings, which were
terminated on 03.10.2017, Annexure P-30, under Section 25(a) and
3 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -4-
CR -78-2024 (O&M)
32(2)(c) of the Arbitration Act. Counsel asserts that as the claims of
the petitioner have not been adjudicated, by communication dated
28.10.2017, Annexure P-31, petitioner nominated a former Judge of
this Court as its Arbitrator and requested the respondents to nominate
their Arbitrator but the respondents rejected the request by its letter
dated 30.11.2017, Annexure P-32, forcing the petitioner to file an
instant petition. Counsel submits that during the pendency of the
petition, the application filed under Section 14/15 of the Arbitration
Act has been rejected by the learned District Judge, Chandigarh, vide
order dated 02.08.2023, which has been challenged in the connected
case.
6. Counsel for the petitioner has argued that after the
coming into force of the Amending Act, 2015, a fresh cause of action
has arisen with the petitioner as the independence and impartiality of
the arbitrators is a mandatory requirement under the amended Act. He
submits that the finalization of the litigation up to the Supreme Court
prior to the introduction of Section 12(5) of the Arbitration Act, does
not debar the petitioner from approaching this Court under Section 11
of the Arbitration Act, for appointment of an independent tribunal. He
has placed reliance upon:-
(i) Ellora Paper Mills Limited Versus
State of Madhya Pradesh, 2022(3) SCC 1
(ii) Om 360 Degrees Advertising and
Entertainment Pvt. Ltd. Versus Delhi
4 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -5-
CR -78-2024 (O&M)
Metro Rail Corporation Limited (DMRC),
2023 SCC Online Delhi 6006.
(iii) Progressive Infotech Private Limited
v. Ircon International Ltd., (2023) SCC
OnLine Del 550 and
(iv) Madhava Hytech-Rani (JB) v. Ircon
International Limited, 2016 SCC OnLine
Del 6326,
in support of the above arguments.
7. Counsel for the petitioner has contended that as the
Arbitral Tribunal inherently lacks jurisdiction, the entire arbitral
proceedings are non est and an objection can be entertained at any
stage. Further, he asserts that as the arbitral proceedings have been
terminated under Section 25(a) and 32(2)(c) of the Arbitration Act, the
termination can only be challenged under Section 14 of the Arbitration
Act. Reliance has been paced by him upon
(i) Chennai Metro Rail Limited
Administrative Building Versus M/s
Transtonnelstroy Afcons (JV) and another,
(2024) 6 SCC 211;
(ii) Hindustan Zinc Limited Versus Ajmer
Vidyut Nigam Limited, (2019)17 SCC 82;
(iii) Lalitkumar V. Sanghavi (dead) & Anr. vs.
Dharamdas V. Sanghavi and Ors. (2014) 7 SCC
255 and
(iv) Prime Interglobe Private Limited Versus
Super Mill Products, 2022 SCC Online Del 1599.
8. Upon being served, written statement has been filed by
respondent No.1, contesting the petition wherein the factual position
has not been disputed but it has been submitted that the petitioner
failed to complete the work within the stipulated period and on grant
5 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -6-
CR -78-2024 (O&M)
of extension, work was completed on 20.04.2009. A stand has been
taken that since the objection regarding the independence and
impartiality of the Arbitral Tribunal taken by the petitioner, has been
rejected up to the Supreme Court, as also petitioner cannot re-
adjudicate the same issue. State counsel submits that in the
meanwhile, the arbitral proceeding were continuing and when the
petitioner failed to submit the statement of claim an application under
Section 25 of the Arbitration Act was moved by the respondents and
on 03.10.2017, Annexure P-30, the Arbitral Tribunal terminated the
proceedings. An argument has been raised by the State counsel that
the remedy for the petitioner is to approach the Tribunal and petition
under Section 11 and 14 of Arbitration Act is not maintainable. State
counsel asserts that as the arbitral proceedings commenced prior to
23.10.2015, provisions of the amended Act do not apply. He placed
reliance upon
(i) S
rei Infrastructure Finance Limited vs Tuff Drilling
Private Limited (2018)11 SCC 470;
(ii) Aravali Power Company Pvt. Ltd. vs M/S. Era
Infra Engineering Ltd. 2017(4)RCR (Civil)842;
(iii) S.P. Singla Constructions Pvt. Ltd. v. State of
Himachal Pradesh (2019) 2 SCC 488; and
(iv) Union of India Versus Indian Agro Marketing
Cooperative Limited, CM(M) 424/2021 decided by
Delhi High court on 02.05.2022.
9. I have heard counsel for the parties and considered their
rival submissions besides examining the voluminous documents
placed on record.
6 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -7-
CR -78-2024 (O&M)
10. The following four questions arise for determination in
this petition:-
(i) Whether the provisions of the Section 12(5) of the
Arbitration Act, would apply to the arbitration
proceedings which have commenced prior to coming into
force of the amended Act, on 23.10.2015.
(ii) Whether the amended Act would furnish a fresh
cause of action to the petitioner more so, after the
previous challenge to the independence and impartiality
of the Arbitral Tribunal became final up to the Supreme
Court.
(iii) Whether the participation of the petitioner in the
arbitral proceedings before the Arbitral Tribunal during
the pendency of the petition under Section 14 of the
Arbitration Act amounts to acquiescence.
(iv) Whether after the termination of the Arbitral
proceedings under Section 25(a) and 32(2) (c) of the
Arbitral Act, petitioner can seek appointment of a fresh
Arbitral Tribunal.
11. This Court will now proceed to answer the questions.
Question No. (i)
In so far as the first question is concerned, the dissension
revolves around the applicability of sub Section (5) of Section 12 of
the Arbitration Act, which has been introduced by virtue of the
7 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -8-
CR -78-2024 (O&M)
amendment brought about in the Arbitration Act w.e.f. 23.10.2015.
This provision is reproduced as under:-
"(5). Notwithstanding any prior agreement to the
contrary, any person whose relationship, with the parties
or counsel or the subject-matter of the dispute, falls
under any of the categories specified in the Seventh
Schedule shall be ineligible to be appointed as an
arbitrator;
Provided that parties may, subsequent to disputes
having arisen between them, waive the applicability of
this sub-section by an express agreement in writing."
12. When this provision is read with Seventh Schedule to the
Arbitration Act, it makes it clear that any person, who falls within any
of the categories specified therein, is ineligible to be appointed as an
Arbitrator except where the parties by a written agreement agree to
waive the applicability of Section 12(5) ibid. The question that arises
for determination in the instant petition is as to whether this provision
would apply to the arbitral proceedings pending on the date of the
incorporation of the statutory provision. This precise question came
up for consideration before the Supreme Court in Ellora Paper Mills
Limited's case (supra) and it was held as under:-
"16. As observed hereinabove, the Arbitral Tribunal -
Stationery Purchase Committee consisted of officers
of the respondent-State. Therefore, as per Amendment
Act, 2015 - Sub-section (5) of Section 12 read with
Seventh Schedule, all of them have become ineligible
to become arbitrators and to continue as
arbitrators. Section 12 has been amended by
8 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -9-
CR -78-2024 (O&M)
Amendment Act, 2015 based on the recommendations
of the Law Commission, which specifically dealt with
the issue of "neutrality of arbitrators". To achieve the
main purpose for amending the provision, namely, to
provide for "neutrality of arbitrators", sub-section
(5) of Section 12 lays down that notwithstanding any
prior agreement to the contrary, any person whose
relationship with the parties or counsel or the subject
matter of the dispute falls under any of the categories
specified in the Seventh Schedule, he shall be
ineligible to be appointed as an arbitrator. In such an
eventuality, i.e., when the arbitration clause is found
to be foul with the amended provision, the
appointment of the arbitrator would be beyond the
pale of the arbitration agreement, empowering the
Court to appoint such an arbitrator as may be
permissible. That would be the effect of the non
obstante clause contained in sub-section (5)
of Section 12 and the other party cannot insist upon
the appointment of the arbitrator in terms of the
arbitration agreement.
17. It cannot be disputed that in the present case,
the Stationery Purchase Committee -Arbitral Tribunal
comprising of officers of the respondent-State are all
ineligible to become and/or to continue as arbitrators
in view of the mandate of sub-section (5) of Section
12 read with Seventh Schedule. Therefore, by
operation of law and by amending Section 12 and
bringing on statute sub-section (5) of Section 12 read
with Seventh Schedule, the earlier Arbitral Tribunal -
Stationery Purchase Committee comprising of
Additional Secretary, Department of Revenue as
President and (i) Deputy Secretary, Department of
9 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -10-
CR -78-2024 (O&M)
Revenue, (ii) Deputy Secretary, General
Administration Department, (iii) Deputy Secretary,
Department of Finance, (iv) Deputy Secretary/Under
Secretary, General Administration Department and
(v) Senior Deputy Controller of Head Office, Printing
as Members, has lost its mandate and such an
Arbitral Tribunal cannot be permitted to continue and
therefore a fresh arbitrator has to be appointed as
per Arbitration Act, 1996."
13. Setting aside the judgment of the High Court of Madhya
Pradesh, in para 20, Supreme Court came to the conclusion that the
earlier Arbitral Tribunal-Stationary purchase committee, which
comprised of the officials of the State Government, had lost its
mandate by operation of law in view of Section 12(5) read with the
Seventh Schedule. Supreme Court held that a fresh arbitrator has to be
appointed under the provisions of the Arbitration Act.
14. The factual position in Ellora Paper Mills Limited's
deserves to be noticed. After the Arbitral tribunal-Stationary purchase
committee comprising of the officers of the Government was
constituted, M/s Ellora Paper Mills Limited filed its objections to the
constitution of the Arbitral Tribunal on 12.09.2000 and challenged its
jurisdiction by filing an application under Section 13 of the
Arbitration Act. The Arbitral Tribunal rejected the challenge vide
order dated 02.02.2001, which was impugned by M/s Ellora Paper
Mills Limited by filing a writ petition before the High Court, which
came to be dismissed on 24.01.2017 and a liberty was granted to the
appellants to raise objections before the appropriate forum. Thereafter,
10 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -11-
CR -78-2024 (O&M)
M/s Ellora Paper Mills Limited filed petition under Section 14 read
with Section 11 and 15 of the Arbitration Act seeking termination of
the mandate of the originally constituted Arbitral Tribunal by placing
reliance upon Section 12(5) of the Arbitration Act, which had been
introduced in the meanwhile. Matter reached the Supreme Court and
the above reproduced observations were made. The judgment in
Ellora Paper Mills Limited's case therefore, squarely applies to the
facts of the present case.
15. It may be mentioned that the judgments of the Supreme
Court in Aravali Power Company Pvt. Ltd's case (supra) and SP
Singla Constructions Pvt. Ltd.'s case (supra), upon which reliance
has been placed by the State counsel, were relied upon by the Madhya
Pradesh High Court in Ellora Paper Mills Limited's case, while
deciding the matter but as observed above the judgment of the
Madhya Pradesh High Court has been set aside by the Supreme Court.
Therefore, the first question that has arisen for consideration in the
present case is squarely covered by Ellora Paper Mills Limited's case
(supra). The provision of Section 12(5) of the Arbitration Act would
apply to arbitral proceedings which were initiated prior to 23.10.2015
and continued thereafter.
16. Question No. (ii)
The answer to the second question is inter-linked with the
first question. Though in the first round of litigation, the petitioner had
challenged the constitution of the Arbitral Tribunal on the ground that
11 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -12-
CR -78-2024 (O&M)
it lacks independence and impartiality and lost upto the Supreme
Court, but the introduction of Section 12(5) of the Arbitration Act has
provided the petitioner with a fresh ground of challenge. Petitioner
sought to take the benefit of the newly incorporated provision by
moving an application before the Arbitral Tribunal, upon rejection,
filed a petition under Section 14 before the District Judge,
Chandigarh, which culminated in the passing of order dated
02.08.2023. This order has been impugned by the petitioner in the
connected revision petition. The answer to this question is also
therefore, in favour of the petitioner.
17. Question No. (iii)
In order to answer the third question, this Court has
minutely examined the proceedings, Annexure P-19, held before the
Arbitral Tribunal. A total of six hearings were held before the Tribunal
prior to the introduction of Section 12(5) ibid. An examination of the
proceedings, Annexure P-19, shows that the Arbitral Tribunal entered
upon the reference on 26.05.2010, the first hearing took place. The
tribunal was informed that the petitioner has filed a petition under
Section 11 of the Arbitration Act, which is pending and notice has
been issued to the respondent. The respondent raised an objection that
the reference is not maintainable unless the claimant furnishes
security as per the arbitration clause. The Arbitral Tribunal fixed the
fee and expenses and deferred the hearing. The second hearing was held
on 27.09.2013 when time was sought to file a curative petition before
12 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -13-
CR -78-2024 (O&M)
the Supreme Court. On request, the Tribunal adjourned the
proceedings and granted time to the petitioner to file a reply to the
application filed by the respondent regarding security deposit. The
third hearing held on 15.07.2014 was adjourned on the request of the
petitioner, who filed its response to the application. Subsequently in
the 4th hearing, respondents filed their rejoinder. Proceedings of the
fifth hearing are not on the record. During the sixth hearing on
22.08.2015, the petitioner requested that the proceedings be adjourned
sine die in order to await the outcome of the curative petition. The
Arbitral Tribunal noticed that both the parties had not paid their share
of fee and expenses and requested them to do the needful before the
next date. After this, the proceedings were held on 18.11.2015, but by
that time Section 12(5) ibid had been introduced.
18. An analysis of the proceedings clearly shows that the
proceedings were being primarily adjourned on the request of the
petitioner. No effective hearing took place before the Arbitral
Tribunal. Some applications had been moved by the parties and their
responses were filed. It is apparent that the proceedings were at their
very nascent stage as it was yet to be determined as to whether the
petitioner is liable to make the security deposit. Mere participation in
the proceedings at such a preliminary stage could not lead to the
conclusion that the petitioner had acquiesced to the proceedings more
so when it repeatedly sought adjournment on account of pendency of
13 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -14-
CR -78-2024 (O&M)
proceedings before the courts. It cannot be said that petitioner had
joined the proceedings and is debarred from questioning the
impartiality of the Tribunal. This court is therefore of the firm view
that the participation in the arbitral proceedings and raising an
objection by the petitioner does not amount to acquiescence.
19. Question No. (iv)
As noted above, during the next sitting held on
15.01.2016, an application filed by the petitioner seeking declaration
from the learned Arbitrators was rejected. On 15.07.2016, Annexure
P-20, the Arbitral Tribunal gave another opportunity to the petitioner
to submit its statement of claim along with documents and the parties
were requested to pay their share of fee and expenses. During the next
three sittings, the petitioner requested the Arbitral Tribunal to adjourn
the proceedings as petition under Section 14 of the Arbitration Act
was pending. The Arbitral Tribunal also held some internal meetings
and by its order dated 03.10.2017, Annexure P-30, Arbitral Tribunal
terminated the proceedings under Section 25(a) and Section 32(2)(c)
of the Arbitration Act.
20. Now the question that needs determination is as to
whether after the termination of the arbitral proceedings under Section
25(a) and 32(2)(c) of the Arbitration Act, a petition under Section 11
ibid, be filed and is maintainable. In Lalit Kumar V. Sanghavi's case
(Supra), the arbitral proceedings were terminated as the claimant
showed lack of interest and even the arbitrators' fee was not paid. An
14 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -15-
CR -78-2024 (O&M)
application was filed before the Arbitral Tribunal for modification of
the order passed by the Arbitral Tribunal and a separate application
was filed invoking Section 11 of the Arbitration Act which was
dismissed by the High Court. On a cumulative reading of Section 14
and 32(2) of the Arbitration Act, Supreme Court held that Tribunal's
order fell within the scope of Section 32(2)(c) i.e. the continuation of
proceedings had become impossible and by virtue of Section 32(3),
the mandate of the Tribunal came to an end. Supreme Court came to
the conclusion that the question whether the mandate of the arbitrator
stood legally terminated or not, can only examined by the Court as
provided under Section 14(2) of the Arbitration Act.
21. Noticing the judgment of the Supreme Court in Srei
Infrastructure Finance Limited's case (Supra), (cited by the State
counsel in the present case), and following the dictum in
Lalit Kumar V. Sanghavi's case (Supra), High Court of Delhi in
Prime Interglobe Private Limited's case (Supra) held as under:-
"39. At this juncture, it must also be noted
that SMPPL had argued that in light of the judgment
of the Supreme Court in SREI Infrastructure (supra),
the remedy, if any, is only to seek review/recall of the
Termination Order. This is not the correct reading of
the judgment. In the said judgment, the Supreme
Court held that an application seeking recall of
termination under Section 25(a) of the Act is
maintainable, however, that cannot be interpreted to
mean that the proceedings under Section 14 of the
15 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -16-
CR -78-2024 (O&M)
Act cannot lie. The Court finds no ground to relegate
PIPL to the Arbitral Tribunal to seek recall of the
Termination Order. In any event, as already
discussed above, the order passed by the Tribunal,
terminating the proceedings is not under Section
25(a) of the Act and therefore, the objection of
SMPPL regarding maintainability of this petition, by
placing reliance upon the decision in SREI
Infrastructure (supra) is misconceived. On the
contrary, even if the Termination Order is construed
to be passed under Section 25 (a), yet the instant
petition, under Section 14 of the Act is maintainable.
Whether PIPL should be redirected to the
erstwhile Arbitrator and whether the Arbitrator has
the power to recall the Termination Order?
40. Next, question arises as to whether the
same Arbitral Tribunal can be requested to
adjudicate the counter-claims which the PIPL
intends to file. The Court finds merit in the
contention of PIPL that all throughout the
proceedings, PIPL had reserved its right to file
counter-claim and did not give up this right. This is
apparent from the communication dated 17th August,
2019 wherein PIPL categorically reserved its right to
raise counter-claims against the SMPPL. In the said
communication, PIPL was not absolutely clear as to
whether it intended to file its claim before the
Arbitrator, as it only stated that "Respondent has the
right to pursue its claims under the said
communication, in accordance with law, at the
appropriate stage". In any event, before terminating
the proceedings qua counter-claims of PIPL, the
Tribunal ought to have put PIPL to show cause. Now,
16 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -17-
CR -78-2024 (O&M)
with that termination, the entire proceedings
altogether have been closed and the entire record of
the arbitral proceedings have been returned to
SMPPL. In view of the judgment of the Supreme
Court in Perkins Eastman (supra), the erstwhile
Arbitrator is de jure ineligible to resume her office as
her appointment was made unilaterally by SMPPL,
in violation of Section 12(5) of the Act. Therefore, the
Court is now empowered to appoint a substitute
Arbitrator."
22. While examining the facts of the instant case in light of
the above reproduced judgments, it is evident that the petitioner had
never lost interest in the proceedings. It had been merely requesting
for deferment in order to get the decision of the Court on the
eligibility of the Arbitrators, moreso, after the introduction of Section
12(5) in the Arbitration Act. As has been held by the Delhi High
Court, with the termination of the proceedings by the Arbitral
Tribunal, everything has come to a close. In view of the mandate of
Section 12(5) read with Seventh Schedule of the Arbitration Act, two
of the Arbitrators are ineligible to resume office as Arbitrators,
therefore, sending the petitioner back to the Arbitral Tribunal to file an
application for review/recall of its order would amount to putting the
clock back, which is not permissible in view of the amendment in the
statute. This Court is therefore, has the power to appoint a substitute
Arbitrator(s) in place of the Arbitral Tribunal, proceedings before
whom have been terminated.
17 of 18
Neutral Citation No:=2024:PHHC:150047
ARB-337-2017 (O&M) and -18-
CR -78-2024 (O&M)
23. For the aforegoing reasons, while disposing both the
petitions, this Court nominates Hon'ble Mr. Justice (Retd.) H.S.
Sidhu, House No.15, Sector 2-A, Chandigarh-160001, 0172-2740139,
a former Judge of this Court, as the sole Arbitrator to adjudicate the
dispute between the parties subject to compliance of statutory
requirements.
24. Parties are directed to appear before the learned
Arbitrator on date, time and place fixed by the Arbitrator at his
convenience.
25. Needless to mention, parties will be at liberty to raise all
the claims/defences/counter claims/pleas before the Arbitrator. Any
observation made hereinabove will not be binding on the learned
Arbitrator.
26. A request letter along with a copy of this order be sent to
Mr. Justice (Retd.) H.S. Sidhu.
27. As the main petitions have been decided, all pending
applications shall also stands disposed of.
18.11.2024 (SUVIR SEHGAL)
pooja saini JUDGE
Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
18 of 18
