Uttarakhand High Court
ARBAP/70/2022 on 24 February, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
SRI JUSTICE VIPIN SANGHI, C.J.
24TH FEBRUARY, 2023
ARBITRATION APPLICATION NO. 70 OF 2022
Between:
Bharat Heavy Electricals Limited ......Applicant
and
Uttarakhand Power Corporation Limited and others.
....Respondents
Counsel for the applicant : Mr. V.K. Kohli, learned Senior Counsel
assisted by Mr. I.P. Kohli, learned
counsel.
Counsel for the respondents : Mr. D. Barthwal, learned counsel for
the respondents.
Upon hearing the learned Counsel, the Court made the
following
JUDGMENT :
The respondents have filed their objections to the
present Application.
2. The applicant has preferred the present
Application, under Section 11 of the Arbitration and
Conciliation Act, 1996, to seek an appointment of the
Arbitrator to adjudicate the claims of the applicant arising
out of their Agreement for supply of electrical energy by the
respondents to the applicant.
3. The agreement was entered into between the parties
on 31.05.2000. The parties entered into a fresh agreement
thereafter on 22.08.2022. The Agreement dated
22.08.2022 contains an arbitration clause in Clause-25,
which provides that any question or difference whatsoever
which arises between the parties under the said Agreement,
unless the procedure for settling the same is laid down by
the Electricity Act, 2003, shall be referred to arbitration.
4. The applicant invoked the Arbitration Agreement
on 14.11.2022. However, the parties could not mutually
appoint an Arbitrator. Consequently, this Application has
been preferred.
5. The submission of Mr. Barthwal, learned counsel
for the respondents, is firstly that the procedure for
settlement of the applicant's claim is laid down in Section
42(5) of the Electricity Act, 2003. The said provision states
that every distribution licensee-which the respondent is,
shall, within six months from the appointed date or date of
grant of licence, whichever is earlier, establish a forum for
redressal of grievances of the consumers in accordance with
the guidelines as may be specified by the State Commission.
6. I do not find any merit in this submission of Mr.
Barthwal, since Section 42(5) of the aforesaid Act only talks
about establishment of a Grievance Redressal Forum which
is a non-adjudicatory process.
7. The applicant has already raised its grievance,
while, inter alia, invoking the Arbitration Agreement, and
the same has not been redressed.
8. The Grievance Redressal Forum is not a substitute
for an adjudicatory process. This submission of Mr.
Barthwal is, therefore, rejected.
9. Mr. Barthwal further submits that an Arbitral
Tribunal was already constituted, since disputes arose
between the parties earlier as well.
10. Mr. V.K. Kohli, learned Senior Counsel appearing
for the applicant, submits that the earlier Arbitral Tribunal
had already rendered its award, which was already put to
challenge under Section 34 of the Arbitration and
Conciliation Act, 1996. The award was in favour of the
applicant and has been upheld with dismissal of the
objections. The disputes now raised by the applicant are
not covered by the earlier Arbitration.
11. Mr. Barthwal submits that the disputes now raised
could have been and ought to have been raised when the
Arbitration Agreement was invoked. However, the applicant
failed to do so.
12. In my view, this is an aspect which would
squarely fall for the Arbitral Tribunal to consider.
13. Since the parties have entered into an Agreement
for supply of electrical energy which contains an arbitration
clause, and the applicant has invoked the said Agreement
and has raised these claims, in my view, the present
Application is liable to be allowed.
14. Accordingly, I appoint Mr. Justice R.K. Gauba
(Retd.), Delhi High Court, R/o D-66 (Second Floor),
Panchsheel Enclave, New Delhi (Mobile No. 9650411919) to
act as a sole Arbitrator to adjudicate all disputes, claims and
counter-claims between the parties, arising out of the
aforesaid Agreement.
15. The parties are agreeable to appointment of the
sole Arbitrator from outside the State on the understanding
that the proceedings would be held virtually and may be
held physically only when necessary so as to save the costs.
16. The Application stands disposed of.
________________
VIPIN SANGHI, C.J.
Dt: 24th February, 2023
Rathour
