Gujarat High Court
M/S Vinolia Tourist Cabs vs Nuclear Power Corporation Of India Ltd on 25 January, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
C/IAAP/114/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 114 of 2018
With
R/PETN. UNDER ARBITRATION ACT NO. 115 of 2018
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M/S VINOLIA TOURIST CABS
Versus
NUCLEAR POWER CORPORATION OF INDIA LTD
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Appearance:
MR. ARCHIT P JANI(7304) for the PETITIONER
MR YOGI K GADHIA(5913) for the RESPONDENT Nos. 1, 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Date : 25/01/2019
COMMON ORAL ORDER
1. These petitions are taken out for the following reliefs:
Prayer of IAAP No.114 of 2018 (A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to appoint a sole arbitrator to resolve the disputes between the parties arose in respect of agreement dated 16.11.2013 entered into by the parties with respect to Work Order No.71639 (Tender no.47);
(C) Your Lordships may be pleased to award costs of this petition;Page 1 of 6 C/IAAP/114/2018 ORDER
(D) Your Lordships be pleased to grant such other and further relief/s and/or order as deemed fit in the facts and circumstances of the case in favour of the petitioner in the interest of justice.
Prayer of IAAP No.115 of 2018 (A) Your Lordships may be pleased to admit and allow this petition;
(B) Your Lordships may be pleased to appoint a sole arbitrator to resolve the disputes between the parties arose in respect of agreement dated 16.11.2013 entered into by the parties with respect to Work Order No.71640 (Tender no.48);
(C) Your Lordships may be pleased to award costs of this petition;
(D) Your Lordships be pleased to grant such other and further relief/s and/or order as deemed fit in the facts and circumstances of the case in favour of the petitioner in the interest of justice.
2. The arbitration clause 17.8.1 placed at page no.95 in the compilation, which require to be reproduced as under:
"17.8.1: Any dispute not settled amicably and in respect of which the DRB's decision (if any) has not become final and binding shall be Page 2 of 6 C/IAAP/114/2018 ORDER finally settled by arbitration. Unless otherwise agreed by both parties:
i) For contracts with foreign contractors:
a) International arbitration with proceedings administered by the international arbitration institution appointed by the corporation, in accordance with the rules of arbitration of the appointed institution;
b) the place of arbitration shall be the city where the headquarters of the appointed arbitration institution is located or such other place selected in accordance with the applicable arbitration rules; and
c) the arbitration shall be conducted in the language for communications defined in Sub-
Clause 1.3; ;and
ii) For contracts with domestic contractors, arbitration with proceedings conducted in accordance with the Indian Arbitration and Conciliation Act, 1996;
a) All questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before contained in this Contract or as to the quality of the workmanship or materials used on the work or arising out of the terms and conditions of the Contract whether during the progress of Page 3 of 6 C/IAAP/114/2018 ORDER the work or after the completion or abandonment thereof, at the request of the aggrieved party in writing, shall be referred to the sole arbitration of the person and appointed by the Chairman & Managing Director, Nuclear Power Corporation of India Ltd. in respect of the contracts entered for and on behalf of the Corporation, by any Officer / Authority of the Corporation.
b) When it appears to the person that there exists an element of a settlement which may be acceptable to the parties, he shall submit them to parties for their observation. He may reformulate the terms of a possible settlement in the light of their observations.
c) If the parties reach agreement of the dispute, they may draw up and sign a written settlement agreement. They may request the person to draw up or assist them in drawing up the settlement agreement.
d) If settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30 of the Act.
e) If a settlement does not appear possible, the person, after consultation with the parties, will give a written declaration that further efforts at Conciliation are no longer justified and the Page 4 of 6 C/IAAP/114/2018 ORDER person proceedings are terminated.
f) When Conciliation proceedings have become infructuous or have been terminated, the party, which initiated the Conciliation, shall refer the disputes for Arbitration. The reference to Arbitration should be made preferably within 30 days of the termination of the Conciliation Proceedings.
g) The Arbitration shall be conducted in accordance with the indian Arbitration and Conciliation Act, 1996. For Contract costing upto Rs.10 Crores, a Sole Arbitrator shall be appointed. For Contracts costing over Rs.10 Crores, a Committee of Arbitrators shall be appointed composed of one Arbitrator to be by the Contractor, one to be by the Owner and the third Arbitrator, who will act as a Chairman but not a umpire, to be chosen jointly by the two nominees. The decision of majority of Arbitrators shall be final and binding on both parties."
3. The notice for appointment of arbitrator was issued on 05.06.2018. Pursuant thereto, as no reply was received, the petition was filed and this Court on 20.07.2018 issued notice which was made returnable on 03.08.2018. In the meantime, it is said that the Arbitrator was appointed by the respondent, who happened to be their ex-employee and intimation thereto was received by the petitioner on Page 5 of 6 C/IAAP/114/2018 ORDER 25.07.2018.
4. Shri Gadhia, learned advocate for the respondents submitted that thus the appointment of arbitrator, as it is in terms of the clause of the Arbitration, the same could not have founded flawd by the petitioner and therefore the petition is required to be dismissed and the concerned arbitrator be permitted to be proceeded further with the arbitration.
5. In view of provision of Section 11 and in view of the fact that the petitioner has strongly objected to the appointment of the ex-employee, I am of the clear opinion that the Arbitrator needs to be appointed. If the parties fail to bring about their consensual name by the next date of hearing, the Court shall proceed with the name that may be found appropriate to be appointed as Arbitrator. It goes without saying that the order of appointment of Arbitrator by the respondent would be of no avail and is hereby quashed and set aside, as it is contrary to the provision of law.
6. Parties are at liberty to suggest the consensual name for appointment of sole Arbitrator to adjudicate the dispute, failing which the Court will pass appropriate order for appointment of Arbitrator. S.O. to 08.02.2019.
(S.R.BRAHMBHATT, J.) PANKAJ Page 6 of 6