Delhi High Court - Orders
M/S Allied Engineers (Registered ... vs Hindustan Prefab Limited (A Government ... on 10 November, 2022
Author: Prateek Jalan
Bench: Prateek Jalan
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 889/2022
M/S ALLIED ENGINEERS (REGISTERED
PARTNERSHIP FIRM) ..... Petitioner
Through: Mr. Avinash Trivedi, Mr. Rhythem
Nagpal & Mr. Anurag Kaushik,
Advocates. [M:-9318499390]
versus
HINDUSTAN PREFAB LIMITED (A
GOVERNMENT OF INDIA ENTERPRISE) ..... Respondent
Through: Mr. Varun Nischal & Mr. Vaibhav
Mishra, Advocates with Mr.
Mukesh Kumar, Legal Officer.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 10.11.2022
1. By way of the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 ["the Act"], the petitioner seeks appointment of an arbitrator to adjudicate disputes arising between the parties under a Contract dated 11.01.2017 ["the Contract"] for Construction of Type II (140 Nos.) and Type III (64 Nos.) Residential Quarters for the National Disaster Response Force, Ludhiana, Punjab ["NDRF"]. The petitioner relies upon Clause 27 of the Special Conditions of Contract ["SCC"] which provides for resolution of disputes by arbitration. The venue of the arbitration, provided under Clause 27(ii) of the SCC, is New Delhi.
Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:11.11.2022 17:43:06 ARB.P. 889/2022 Page 1 of 4Article 5.1 of the Contract also vests exclusive jurisdiction in the Courts in Delhi.
2. Notice of the petition was issued on 01.08.2022. Mr. Varun Nischal, learned counsel, entered appearance on behalf of the respondent on 14.09.2022, and was granted permission to file an affidavit in response to the petition in view of the respondent's contention that the General Conditions of Contract ["GCC"] also contained an arbitration clause which is not identical to Clause 27 of the SCC relied upon by the petitioner. I am informed by Mr. Nischal that the respondent has filed an affidavit only yesterday i.e., 09.11.2022. Although the affidavit is not on record, a copy of the same has been handed over in Court, and is taken on record.
3. Mr. Nischal, relying upon Clause 25 of the GCC, submits that the petitioner was required to take various steps precedent to a reference to arbitration, including for resolution of disputes by the Superintending Engineer, Chief Engineer, and a Dispute Redressal Committee ["DRC"] of the respondent. He submits that, only in the event of the petitioner being dissatisfied with the decision of the DRC, the Chief Engineer was required to appoint an arbitrator.
4. Mr. Avinash Trivedi, learned counsel for the petitioner, raises a dispute as to the applicability of the Clause 25(i) of the GCC, in the facts and circumstances of the present case, and having regard to the nature of the claims raised by the petitioner. Be that as it may, he is agreeable to a reference of the disputes to the DRC with a direction to dispose of the same within a short time, failing which the matter may be referred to arbitration.
Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:11.11.2022 17:43:06 ARB.P. 889/2022 Page 2 of 45. Mr. Nischal is also agreeable to this course of action. However, Mr. Nischal submits that, in view of the applicable contractual provisions, NDRF is also required to be made a party to the arbitration proceedings.
6. Having heard learned counsel for the parties, I am of the view that disputes of the parties can be referred to the DRC, and, as stipulated in Clause 25(i) of the GCC, DRC may be given a period of 90 days for redressal of the petitioner's disputes. At the same time, an arbitrator may also be appointed who will enter into the reference if the resolution proposed by the DRC is not acceptable to either of the parties. The question of impleadment of NDRF can also be left open for consideration by the arbitrator.
7. With the consent of learned counsel for the parties, the petition is therefore disposed of with the following directions:-
a. The contract details and constitution of DRC will be supplied by Mr. Nischal to Mr. Trivedi within two days, and the petitioner will submit its disputes to DRC within a period of one week from today. DRC may take up the disputes, and dispose of the petitioner's claims within a period of 90 days thereafter. b. In the event the resolution is not acceptable to either of the parties, the disputes between the parties arising out of the Contract will be adjudicated by arbitration, for which purpose Hon'ble Mr. Justice P.K. Bhasin, former Judge of this Court [Tel:- 9871300032] is appointed as the Arbitrator. Either party may approach the learned Arbitrator after lapse of the aforesaid time or after the DRC decides the matter, whichever is earlier.
c. The learned Arbitrator is requested to furnish a declaration in terms Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:11.11.2022 17:43:06 ARB.P. 889/2022 Page 3 of 4 of Section 12 of the Act, prior to entering upon the reference. d. The arbitration will be held under the aegis of Delhi International Arbitration Centre, Shershah Road, New Delhi-110503 ["DIAC"], and will be subject to the Rules of the DIAC, including as to the renumeration of the learned Arbitrator.
e. The question of impleadment of NDRF is left open for adjudication by the learned Arbitrator.
f. It is made clear that this Court has not entered into the merits of the controversy between the parties, and all claims and defences are also left open for adjudication by the learned Arbitrator in accordance with law, including as to the arbitrability of the claims, and merits of the claims of the parties.
PRATEEK JALAN, J NOVEMBER 10, 2022 'pv'/ Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:11.11.2022 17:43:06 ARB.P. 889/2022 Page 4 of 4