Uttarakhand High Court
ARBAP/5/2022 on 22 July, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
ARBITRATION APPLICATION NO. 05 OF 2022
22nd July, 2022
Between:
Jaguar Overseas Limited ...... Applicant/Petitioner
and
Union of India & another ...... Respondents
Counsel for the applicant : Mr. Praveen Chauhan with Mr.
Siddhartha Jain, Mr. Sarthak
Sawhney and Ms. Malvica
Satija, learned counsel
Counsel for the respondent : Mr. Karan Anand, learned
Standing Counsel for the Union
of India / respondents
The Court made the following:
JUDGMENT:
Despite repeated opportunities, no reply has
been filed. Right to file reply of the respondents stand
closed.
2) The applicant has preferred the present
application under Section 11(6) of the Arbitration and
Conciliation Act, to seek appointment of a sole Arbitrator
to adjudicate the disputes which have arisen between
the parties under their agreement contained in Contract
Agreement No. CEB/PGH/45/ on 2022-12 : Provn of MAP
Project (Phase I, II & III).
3) The case of the applicant is that the applicant
was awarded the said contract which had to be executed
within a period of 25 months. However, on account of
certain alleged delay and defaults attributed to the
respondents, the work under the contract was completed
on 25.07.2019, after a delay of almost 41 months. The
applicant attributes this delay to the respondents. The
applicant claims that on account of additional / extra
work, and on account of the delay, the applicant has
several outstanding claims against the respondents. The
agreement contains an arbitration agreement in Clause
70, under which all disputes between the parties to the
Contract (other than those for which the decision of the
C.W.E. or any other person is by the contract expressed
to be final and binding) shall, after written notice by the
party to the Contract to the other of them, be referred to
sole arbitration of a service officer of the respondent to
be appointed by the authority mentioned in the tender
document. The applicant invoked the arbitration
agreement on 15.06.2021, enlisting its claims and
seeking appointment of an Arbitrator. However, no
Arbitrator was appointed by the respondent, and
consequently, this application has been preferred.
4) As aforesaid, no reply has been filed by the
respondents, despite repeated opportunities.
5) The submission of learned counsel for the
respondents is that under the terms of the arbitration
clause, only a serving Officer of the respondent could be
appointed as an Arbitrator, who has the requisite degree
in Engineering, or equivalent, or who has passed final /
direct final Examination of sub-division II of Institution of
Surveyor (India) recognized by Government of India.
6) This submission of the respondents has no
merit for the reason that under Section 12(5) read with
the Seventh Schedule, notwithstanding the agreement of
the parties to the contrary, the appointment of an
Arbitrator, who is an employee, consultant, advisor or
who has in the past or present, or who has had in the
past or present, business relationship with a party, is
barred from being appointed as an Arbitrator.
Therefore, an employee of the respondent can possibly
not be appointed as an Arbitrator.
7) Since the respondent has not appointed the
Arbitrator before the filing of this Application, the right of
the respondent to now appoint the Arbitrator stands
forfeited.
8) In the light of the aforesaid, I allow this
Arbitration Application application, and appoint Mr.
Justice Pradeep Nandrajog, Retd. Chief Justice, Bombay
High Court, to act as a sole Arbitrator to adjudicate all
claims and counter-claims between the parties arising
out of the aforesaid agreement.
________________
VIPIN SANGHI, C.J.
Dt: 22nd July, 2022
Negi
