Himachal Pradesh High Court
Saiurja Hydel Projects Pvt. Ltd vs Tangnu Romai Power Generation Pvt. Ltd on 5 January, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Arb. Case No. 58 of 2017
Date of Decision: 5.1.2018
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______________________________ _______________________________________
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Saiurja Hydel Projects Pvt. Ltd. .........Petitioner
Versus
Tangnu Romai Power Generation Pvt. Ltd. .......Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the petitioner: Mr. Vikas Chauhan, Advocate.
For the respondent: Mr. Anuj Gupta, Advocate.
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Sandeep Sharma, J. (Oral)
Present application has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (in short "the Act") on the behalf of the applicant, praying therein for appointment of Arbitrator in terms of Clause 36 of contract agreement dated 1.9.2010 (Annexure P-2).
2. Averments contained in the application as well as documents annexed therewith suggest that respondent had floated tenders for the construction of Tangnu Romai-II Hydro Electric Project (6MW) and the applicant company being lowest bidder, came to be awarded the work in question vide award dated 14.6.2010. Documents annexed with the application further reveal that pursuant to awarding of work in favour of the applicant, parties entered into a contract agreement dated 1.9.2010. It also emerges from the pleadings as well as documents adduced on record by the Whether reporters of the Local papers are allowed to see the judgment? ::: Downloaded on - 06/01/2018 23:03:09 :::HCHP -2- applicant that the applicant after having entered into a contract agreement with the respondent executed certain work, qua which, subsequently, dispute arose inter-se them. At the first instance, applicant with a view to get the .
matter settled amicably inter-se parties, approached the respondent in terms of clause 36 of contract agreement dated 1.9.2010, requesting therein to appoint Er. R.K. Sharma, (Rtd. Engineer-in-Chief, HPPWD) as an Arbitrator, but fact remains that aforesaid request was not acceded or responded to, as a consequence of which, applicant was compelled to approach this Court under Section 11 of the Act for appointment of an Arbitrator to adjudicate the dispute inter-se the parties.
3. Mr. Vikas Chauhan, learned counsel representing the applicant, while inviting attention of this court to clause 36 of the contract agreement dated 1.9.2010 contended that in the event of dispute inter-se parties respondent company is under obligation to appoint Arbitrator but since it failed to appoint Arbitrator in terms of Contract Agreement, this court is well within its powers under Section 11 of the Act, to appoint an Arbitrator.
4. Mr. Anuj Gupta, learned counsel representing the respondent company while seeking dismissal of the present application on the ground that the application is premature contended that parties to the application are in process of negotiations and no final decision has yet been taken by the respondent on the request having been made by the applicant. While referring to the reply having been filed on behalf of the respondent, Mr. Gupta, contended that request was made on behalf of the applicant vide communication dated 11.4.2017, for appointment of Arbitrator but since ::: Downloaded on - 06/01/2018 23:03:09 :::HCHP -3- person named by the applicant was not of legal background, prayer having been made by the applicant could not be acceded to.
5. Leaving everything aside, it may be noticed that on 22.12.2017, .
learned counsel for the parties fairly stated before this court that there is no dispute inter-se parties qua appointment of Arbitrator, rather they have been consulting and deliberating with each other on the name of Arbitrator to be appointed in terms of clause 36 of the contract agreement. On that day, during proceedings of the case, learned counsel while stating that any retired Judicial Officer, can be appointed as an Arbitrator, themselves named Justice S.S. Thakur (retired), to be appointed as an Arbitrator to adjudicate the dispute inter-se the parties. Since as per Section 11 Clause 8 of the Act, prior consent is/was required to be obtained from the proposed Arbitrator, learned counsel representing the parties after having interacted with the proposed Arbitrator informed this Court that Mr. Justice S.S. Thakur (retired) Judge of High Court, has consented to the proposal moved by them.
6. Today, during the proceedings of the case, learned counsel representing the applicant, has made available written consent in terms of Section 11 clause 8 given by Mr. Justice S.S. Thakur (Rtd.), above named Arbitrator, which has been taken on record. Since above named Arbitrator has consented to be appointed as an Arbitrator, this Court sees no impediment in accepting the present application, whereby prayer has been made to refer the matter to arbitration for adjudication of dispute inter-se parties.
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7. Consequently, in view of the detailed discussion made herein above, Mr. Justice S.S. Thakur, retired judge of High Court, is appointed as an Arbitrator to adjudicate the dispute in question,' with the consent of learned .
counsel for the parties. He is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. Thereafter, petitioner is directed to file claim petition within a period of three weeks. Reply be filed by the respondents within a period of three weeks. Pleadings, including rejoinder and counter-claims shall also be completed by the parties within a period of eight weeks after entering into reference by the Arbitrator. It shall be open to the Arbitrator to determine his own procedure with the consent of the parties. Needles to say, Arbitrator shall be entitled to charge fee as prescribed under the Act. Award shall be made strictly as per the provisions of Arbitration & Conciliation Act, 1996, within six months. Needless to add that the Arbitrator shall pass a speaking order.
8. A copy of this order shall be made available to the Arbitrator, named above, by the Registry of this Court, within a period of two weeks, enabling him to take steps for commencement of the arbitration proceedings.
9. The petition is disposed of.
5th January, 2018 (Sandeep Sharma),
manjit Judge
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