Delhi High Court - Orders
Ksm Bashir Mohammad And Sons vs Engineering Projects India Ltd on 23 March, 2022
Author: Najmi Waziri
Bench: Najmi Waziri
$~33, 34 & 35(1)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 671/2021, I.A. 16429/2021 & I.A. 16430/2021
KSM BASHIR MOHAMMAD AND SONS ..... Petitioner
Through: Mr. Ratan Kr. Singh, Sr. Advocate
with Mr. Nikhilesh Krishnan,
Advocate.
versus
ENGINEERING PROJECTS INDIA LTD ..... Respondent
Through: Mr. Debarshi Bhadra, Advocate.
+ ARB.P. 672/2021, I.A. 16431/2021 & I.A. 16432/2021
KSM BASHIR MOHAMMAD AND SONS ..... Petitioner
Through: Mr. Ratan Kr. Singh, Sr. Advocate
with Mr. Nikhilesh Krishnan,
Advocate.
versus
ENGINEERING PROJECTS INDIA LTD ..... Respondent
Through: Mr. Debarshi Bhadra, Advocate.
+ ARB.P. 692/2021, I.A. 16433/2021 & I.A. 16434/2021
KSM BASHIR MOHAMMAD AND SONS ..... Petitioner
Through: Mr. Ratan Kr. Singh, Sr. Advocate
with Mr. Nikhilesh Krishnan,
Advocate.
versus
ENGINEERING PROJECTS INDIA LTD ..... Respondent
Through: Mr. Debarshi Bhadra, Advocate.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
% 23.03.2022 The hearing has been conducted through hybrid mode (physical and Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:24.03.2022 05:26:36 virtual hearing).
1. These petitions, under section 11(6) of the Arbitration and Conciliation Act, 1996, seeks the appointment of an Arbitrator in terms of clause 76.1 of the General Conditions of Contract ('GCC'), which is reproduced hereunder:
"...
76.0 ARBITRATION 76.1. Before resorting to arbitration as per the clause given below, the parties if they so agree may explore the possibility of conciliation as per the provisions of Part-III of the Arbitration and Conciliation Act, 1996. When such conciliation has failed, the parties shall adopt the following procedure for arbitration:
i). Except where otherwise provided for in the contract, any disputes and differences relating to the meaning of the specifications, design, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used in the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, or these conditions, or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to the Sole Arbitration of the Chairman and Managing Director (CMD) of Engineering Projects (India) Limited (EPI), or any other person discharging the functions of CMD of EPI and if CMD or such person discharging the functions of CMD of EPI is unable to act, to the sole Arbitration of some other person appointed by CMD of EPI or such other person discharging the functions of CMD of EPI. There will be no objection if the arbitrator so appointed is an employee of Engineering Projects (I) Ltd. However, such an employee shall not have directly dealt with the said Contract or the works there under on behalf of the EPI . Such Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:24.03.2022 05:26:36 Arbitrator shall be appointed within 30 days of the receipt of letter of invocation of arbitration duly satisfying the requirements of this clause.
ii). If the arbitrator so appointed resigns or is unable or unwilling to act due to any reason whatsoever, or dies, the Chairman & Managing Director aforesaid or in his absence the person discharging the duties of the CMD of EPI may appoint a new arbitrator in accordance with these terms and conditions of the contract, to act in his place and the new arbitrator so appointed may proceed from the stage at which it was left by his predecessor.
iii). It is a term of the contract that the party invoking the arbitration shall specify the dispute/differences or questions to be referred to the Arbitrator under this clause together with the amounts claimed in respect of each dispute.
iv). The Arbitrator may proceed with the arbitration ex-parte, if either party, in spite of a notice from the arbitrator, fails to take part in the proceedings.
v). The work under the contract continue as directed by the Engineer-In-charge, during the arbitration proceedings.
vi). Unless otherwise agreed, the venue of arbitration proceedings shall be at the venue given in the 'Memorandum' to the 'Form of Tender'.
vii). The award of the Arbitrator shall be final, conclusive and binding on both the parties.
viii).Subject to the aforesaid, the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modifications or re-enactment thereof and the Rules made there under and for the time being in force shall apply to the arbitration proceedings and Arbitrator shall publish his Award accordingly.
..."
2. Albeit the lis between the parties is claimed to have been settled as full and final, the learned Senior Advocate for the petitioner submits that the same was under duress.
3. The learned counsel for the respondent submits that there are Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:24.03.2022 05:26:36 communications to the effect where the petitioner has undertaken that they would not initiate any arbitration proceedings apropos the lis, which is now sought to be pursued. Therefore, to that effect there is novation of the contract whereby the arbitration clause has been superseded.
4. The learned Senior Advocate for the petitioner submits that these disputes would have to be determined by the learned Arbitrator in the arbitral proceedings.
5. In view of the above, Mr. Justice Badar Durrez Ahmed, former Chief Justice, J & K High Court (Mobile No. 9910615334) is appointed as the Arbitrator. The parties shall appear before the learned Arbitrator in two weeks for arbitral proceedings.
6. The petitioners would like the arbitral fees to be charged in terms of the Fourth Schedule of the Arbitration and Conciliation Act, 1996.
7. The petitions, along with pending applications, are disposed-off in terms of the above.
NAJMI WAZIRI, J MARCH 23, 2022 SS Signature Not Verified Digitally Signed By:KAMLESH KUMAR Signing Date:24.03.2022 05:26:36