Delhi High Court - Orders
M/S Pradeep Vinod Construction Co vs Union Of India on 22 March, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 683/2019
M/S PRADEEP VINOD CONSTRUCTION CO. ..... Petitioner
Through: Mr. Harsh Singhal, Advocate.
versus
UNION OF INDIA ..... Respondent
Through: Mr. Ashok Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 22.03.2022
1. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 [hereinafter, 'the Act'] seeks appointment of a Sole Arbitrator for adjudication of disputes pertaining to a contract awarded to the Petitioner vide acceptance letter dated 25th January, 2012 for work pertaining to the 'Construction of Office Building and Rest House for COFMOW, DLW, RCF & DMW at New Delhi' [hereinafter, 'Agreement'] The afore-noted Agreement is governed by Clause 64(1)(i) of the General Conditions of Contract ("GCC").
2. Counsel for the Respondent does not dispute the existence of the arbitration agreement, however, opposes the maintainability of the present petition primarily on the ground that the parties, vide a Supplementary Agreement dated 21st May, 2019, had agreed that (i) the payment already made under the Agreement is a full and final settlement of all the Petitioner's claims; and that (ii) the Agreement stood discharged, including Signature Not Verified Digitally Signed ARB.P. 683/2019 Page 1 of 3 By:SAPNA SETHI Signing Date:23.03.2022 13:21:36 the arbitration clause contained therein.
3. On the other hand, counsel for the Petitioner, argues that the afore-noted Supplementary Agreement was executed under protest and relies upon the communications dated 1st May, 2019 and 26th June, 2019 annexed with the petition. The Supplementary Agreement has no evidentiary value and the same was signed as a pre-condition for release of payment under the final bill and release of security deposit. He further submits that the payment of the final bill does not include the claims raised in the communication dated 1st May, 2019 and there are several surviving claims that require to be adjudicated.
4. In the opinion of the Court, the objections raised by the Respondent are factual in nature and would require evidence to be led. Indeed, in the communication dated 1st May, 2019, Petitioner had already lodged its protest on the Supplementary Agreement so proposed. This perhaps, indicates that the Respondent was at that time, insisting on the signing of the Supplementary Agreement as a pre-condition for release of the payment. Further, in the subsequent communication of 26th June, 2019, the Petitioner continues to make claims, which according to him, have not been settled. The Court cannot form any firm opinion on this aspect and this issue and it is best if the same is left open for adjudication before the Arbitral Tribunal.
6. In view of the above, the present petition is allowed, and accordingly, Hon'ble Mr. Justice Anil Kumar Pathak, (Retd.) former Judge of this Court [Contact No.: +91-9910384602] is appointed as the Sole Arbitrator to adjudicate the disputes that are stated to have arisen between the parties out of the afore-noted Agreement dated 25th January, 2012.
7. The parties are directed to appear before the learned Sole Arbitrator as Signature Not Verified Digitally Signed ARB.P. 683/2019 Page 2 of 3 By:SAPNA SETHI Signing Date:23.03.2022 13:21:36 and when notified. This is subject to the learned Arbitrator making necessary disclosure(s) under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act.
8. The learned Arbitrator will be entitled to charge his fee in terms of the provisions of the Fourth Schedule appended to the Act.
9. It is clarified that the Court has not examined any of the claims of the parties and all rights and contentions on merits are left open, including the plea urged by the Respondent regarding the discharge of the obligations under the Supplementary Agreement dated 21st May, 2019. Both the parties shall be free to raise their claims/ counter claims before the learned Arbitrator in accordance with law.
10. The petition is allowed in the above terms.
SANJEEV NARULA, J MARCH 22, 2022 nk Signature Not Verified Digitally Signed ARB.P. 683/2019 Page 3 of 3 By:SAPNA SETHI Signing Date:23.03.2022 13:21:36