Calcutta High Court
Ananda Dulal Chakraborty vs Power Grid Corporation Of India Ltd on 14 November, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD- 61 ORDER SHEET
A. P. No. 469 of 2017
IN THE HIGH COURT AT CALCUTTA
Original Civil Jurisdiction
ORIGINAL SIDE
IN THE MATTER OF:
ANANDA DULAL CHAKRABORTY
Versus
POWER GRID CORPORATION OF INDIA LTD.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 14TH November, 2017.
Appearance:
Mr. Kamal Kumar Chattopadhya, Adv.,
Mr. V. Vikerjiberlia, Adv.
The Court : This is an application under Section 11 of the Arbitration and
Conciliation Act 1996 (in short "the Act of 1996"). It is the case of the petitioner
that in connection with the contract awarded to him by the respondent Power
Development Corporation, he raised various disputes which were referred to an Arbitrator appointed by the Chairman-cum-Managing Director of the respondent as per clause 69.1 of the conditions of contract. Way-back in the year 2003 the learned arbitrator appointed by the Chairman-cum-Managing Director of the respondent commenced by the arbitral proceeding but the same did not attain the finality.
2
By a letter dated September 28, 2016 the petitioner, through his advocate requested the General Manager, the Manager (Law) and the Chief Manager (Durgapur) of the respondent to arrange for appointment of a new arbitrator to conclude the arbitral proceeding. By a letter dated December 02, 2016 an authorised signatory of the respondent informed the petitioner that in view of the amendment of the Act of 1996, with effect from October 23, 2015 the petitioner is required to give consent for switching over to the amended provisions of Arbitration and Conciliation (Amendment) Act, 2015 in place of the original Act of 1996. According to the petitioner, by a letter dated December 24, 2016 he gave consent to the applicability of the provisions of the Arbitration and Conciliation (Amendment) Act, 2015, but no step has been taken by the respondent for appointing a new arbitrator as per the provisions of the amended the Arbitration and Conciliation (Amendment) Act, 2015.
By an order dated June 22, 2017 a learned Single Judge of this Court observed that in the present case the provisions of Section 12(5) of the amended Arbitration and Conciliation Act, 1996 appears to be prima facie applicable and fixed the matter for hearing.
Today, when this application is taken up for hearing Mr. Ramesh Chowdhury appearing for the petitioner contended that since the original arbitrator did not conclude the arbitral proceeding for more than 13 years this Court should declare the mandate of the said arbitrator being terminated. He further submitted that when the petitioner has given consent to the proposal of the respondent for making the amended provisions contained in the Arbitration 3 and Conciliation (Amendment) Act, 2015 be applicable for adjudication of the disputes between the parties, the Chairman and Managing Director of the respondent cannot appoint a new arbitrator as per clause 69.1 of the conditions of contract. In the present case, the arbitral proceedings have commenced in the year 2003 and the provisions of the Arbitration and Conciliation (Amendment) Act, 2015 are not applicable.
When the Amending Act 3 of 2015 is not applicable to the arbitral proceeding between the parties which commenced in the year 2003, it is intriguing as to how an authorised signatory of the respondent could seek for the petitioner's consent for making the provisions of the said amended Act applicable between the parties.
However, since the original arbitrator Shri Ganesh Sing has not completed the arbitral proceeding for the last 13 years his mandate stands terminated. In view of the decision of the Supreme Court in the case of NBCC Ltd. vs. J.G. Engineering Private Ltd. reported in (2010) 2 SCC 385the agreed procedure for appointment of arbitration contained in clause 69.1 of the conditions of contract is still applicable between the parties. Therefore, the Chairman cum Managing Director of the respondent is directed to appoint a new arbitrator, as per clause 69.1 of the conditions of contract within a period of eight weeks from the date of communication of this order.
It is, however, clarified that before appointing to a new arbitrator as directed above, the Chairman cum Managing Director of the respondent may 4 ascertain if any, final decision had been taken by the previous arbitrator namely, Shri Ganesh Singh.
Since the respondent was not called upon to file any affidavit in opposition the allegation made against them in this application, if any shall be deemed not to have admitted. With the above direction, A.P. 469 of 2017 stands disposed of.
Urgent certified copies of this order, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.
(ASHIS KUMAR CHAKRABORTY, J.) S. Chaudhury)