Karnataka High Court
M/S Napc Limited vs The Executive Engineer on 7 June, 2022
Author: R.Devdas
Bench: R.Devdas
-1-
CMP No. 100003 of 2022
C/W CMP No. 100008 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 07TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE R.DEVDAS
CIVIL MISC PETITION NO. 100003 OF 2022
C/W
CIVIL MISC PETITION NO. 100008 OF 2022
IN CIVIL MISC PETITION NO. 100003 OF 2022
BETWEEN:
M/S NAPC LIMITED
NO.3, APEX PLAZA 6TH FLOOR,
NUNGAMBAKKAM HIGHROAD,
NUNGAMBAKKAM,
CHENNAI-600034.
REPRESENTED BY ITS AUTHORISED SIGNATORY,
N.PADMANABAN S/O. B. NATARAJAN,
AGE:39 YEARS, R/O:146, F1, RUBY ENCLAVE,
THIRUVALLUVAR STREET, EAST TMBARAM,
CHENNAI-600059.
...PETITIONER
(BY SRI. SHIVARAJ.C.BELLAKKI, ADVOCATE AND
SRI.RAKESH M.BILKIS., ADVOCATE )
AND:
THE EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER
PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT
DHARWAD DIVISION
DHARWAD-580001.
...RESPONDENT
(BY SRI.SHIVAPRABHU S. HIREMATH., AGA)
CIVIL MISCELLANEOUS PETITION FILED UNDER SECTION
11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING
TO, APPOINT AN INDEPENDENT AND IMPARTIAL SOLE ARBITRATOR
FOR REFERENCE OF THE DISPUTES ARISING OUT OF OR RELATING
TO THE CONTRACT AGREEMENT DATED 02.01.2018 ISSUED BY THE
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CMP No. 100003 of 2022
C/W CMP No. 100008 of 2022
RESPONDENT IN FAVOUR OF THE PETITIONER PURSUANT TO
CLAUSE 24 OF THE GCC READ WITH CLAUSE 4 OF THE SCC.
THIS WRIT PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
IN CIVIL MISC PETITION NO. 100008 OF 2022
BETWEEN:
M/S NAPC LIMITED
NO.3, APEX PLAZA 6TH FLOOR,
NUNGAMBAKKAM HIGHROAD,
NUNGAMBAKKAM,
CHENNAI-600034.
REPRESENTED BY ITS AUTHORISED SIGNATORY,
SHRI. A. PADMANABAN S/O. B. NATARAJAN,
AGE:39 YEARS, R/O:146, F1, RUBY ENCLAVE,
THIRUVALLUVAR STREET, EAST TMBARAM,
CHENNAI-600059.
...PETITIONER
(BY SRI. SHIVARAJ.C.BELLAKKI, ADVOCATE AND
SRI.RAKESH M.BILKIS., ADVOCATE )
AND:
THE EXECUTIVE ENGINEER
OFFICE OF THE EXECUTIVE ENGINEER
PUBLIC WORKS PORTS AND INLAND WATER TRANSPORT
DHARWAD DIVISION
DHARWAD-580001.
...RESPONDENT
(BY SRI.SHIVAPRABHU S. HIREMATH., AGA)
CIVIL MISCELLANEOUS PETITION FILED UNDER SECTION 11(6) OF
THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO, APPOINT
AN INDEPENDENT AND IMPARTIAL SOLE ARBITRATOR FOR REFERENCE OF
THE DISPUTES ARISING OUT OF OR RELATING TO THE CONTRACT
AGREEMENT DATED 23.03.2018 ISSUED BY THE RESPONDENT IN FAVOUR
OF THE PETITIONER PURSUANT TO CLAUSE 24 OF THE GCC READ WITH
CLAUSE 4 OF THE SCC.
THESE PETITIONS COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
-3-
CMP No. 100003 of 2022
C/W CMP No. 100008 of 2022
ORDER
R. DEVDAS J., (ORAL):
The petitioner is before this Court with a prayer to appoint an independent and impartial Sole Arbitrator for reference of the disputes arising out of two separate Contract Agreements dated 02.01.2018 (in W.P.No.100003/2022) and Contract Agreement dated 23.03.2018 (in W.P.No.100008/2022) entered into between the petitioner and the respondent and more particularly in terms of Clause 24 of the GCC read with Clause 4 of the SCC.
2. On the last occasion the learned counsel for petitioner has submitted that the petitioner had sought appointment of Sole Arbitrator in terms of the list of Arbitrators and wrote to the Indian Roads Congress and Indian Building Congress, but the organizations had replied stating that they have no panel of arbitrators. Therefore, it is submitted that the notice of arbitration -4- CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022 dated 24.08.2020 at Annexure-F proposing to appoint Mr.P.Velu as Sole Arbitrator to adjudicate the Contractor's claims wasissued by the petitioner. The learned Addl. Government Advocate was therefore directed to secure instructions from the respondent.
3. Learned Addl. Government Advocate has today filed a memo along with certain documents and draws the attention of this Court through an application dated 11.02.2022 made by the under Secretary-III of the Indian Roads Congress to the learned counsel for petitioner. In the said communication it is stated that the IRC entertains the request for the appointment of Sole Arbitrary directly from the Authorized Signatory of the Employer and the Contractor only. Nevertheless it is also stated that IRC has not received the complete details/documents/ complete contact agreement and processing fee of Rs.50,000/- as per the Check List (enclosed) for the appointment of Sole Arbitrator from either of the parties. -5- CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022 The learned Addl. Government Advocate submits on instructions that the respondent accepts the appointment of Sole arbitrator through IRC.
4. On the other hand, learned Counsel for the petitioner has drawn the attention of this Court to Annexure-N, which is a request letter given by the learned Counsel for the petitioner to the Indian Roads Congress seeking appointment of Sole Arbitrator invoking Clause 4.1(a) of the SCC within thirty (30) days from the date of receipt of the letter and to intimate the same to the contractor and to the employer. Learned Counsel for the petitioner submits that in terms of sub-clause (6) of Section 11 of the Arbitration and Conciliation Act, 1996, if IRC did not appoint Arbitrator within a period of thirty (30) days, then IRC would lose the right to appoint the sole arbitrator.
5. Having heard the learned Counsels and on perusing the petition papers, this Court finds that in terms -6- CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022 of the list of Arbitrators contained in Clause 4 annexed to the SCC, admittedly, Indian Road Congress is also one of the authority which could be approached by the parties for appointment of Sole Arbitrator. Although, technically, since the IRC did not reply or proceed to appoint the Sole Arbitrator within prescribed period, nevertheless, in its communication dated 11.02.2022, the IRC has expressed its willingness to appoint a Sole Arbitrator. Therefore, having regard to the fact that a specialist Arbitrator having the knowledge of Road Engineering is required to look into the matters as a Sole Arbitrator and there being such expertise available with the IRC, the parties before the Court should be allowed the appointment of a Sole Arbitrator through IRC.
6. For the reasons stated above, this Civil Miscellaneous Petitions filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, stand disposed of with the following:
-7-CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022
ORDER
(i) The Indian Road Congress shall proceed to appoint a Sole Arbitrator to resolve the disputes arising out of or relating to the Contract Agreements dated 02.01.2018 (in W.P.No.100003/ 2022) and Contract Agreement dated 23.03.2018 (in W.P.No.100008/2022) entered into between the parties herein, pursuant to Clause 24 of the GCC read with Clause 4 of SCC.
(ii) The petitioner is required to furnish complete details/documents/contract agreement and process fee of Rs.50,000/- fulfilling the Check List accompanying the communication dated 11.02.2022, with respect to the -8- CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022 above said Miscellaneous Petitions and the same shall be forwarded to the IRC.
(iii) The petitioner shall furnish all the information and the process fee in terms of the communication dated 11.02.2022 within a period of two weeks from the date of receipt of a certified copy of this order.
(iv) The IRC shall thereafter appoint a Sole Arbitrator within a period of 30 days from the date when the documents and process fee is paid by the petitioner with respect to the above said Miscellaneous Petitions and inform the parties of the first date of hearing, which shall preferably be on or before 18.07.2022.
-9-CMP No. 100003 of 2022 C/W CMP No. 100008 of 2022
(v) Needless to observe, the arbitrator's fee and all other expenses shall be shared by the parties.
Ordered accordingly.
Pending I.As., if any, stand disposed of.
SD JUDGE PJ/DL