Madhya Pradesh High Court
M/S S.D. Technical Services Pvt. Ltd. ... vs West Central Railway on 29 June, 2015
AC-58-2012
(M/S S.D. TECHNICAL SERVICES PVT. LTD. PLOT NO.46 GURGAON 122015 Vs WEST CENTRAL
RAILWAY)
29-06-2015
Mr. Aditya Narayan, learned counsel for the petitioner.
Mr. Rakesh Pandey, learned for the respondent.
With consent of the parties, the matter is heard finally.
By means of this application under Section 11(6) of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as
'the 1996 Act'), the petitioner seeks appointment of an Arbitrator
to adjudicate the dispute which has been arisen between the
parties.
Facts giving rise to filing of the application briefly stated
are that admittedly parties to the application entered into an agreement which contains an arbitration clause. During the subsistence of the contract, a dispute arose between the parties. Thereupon, by an order dated 2.11.2012, the petitioner invoked the arbitration clause and requested the respondent to appoint an Arbitrator. However, since the request of the petitioner was not acceded by the respondent. Thereafter, the petitioner filed the instant arbitration case namely Arbitration Case No.58/2012 before this Court, which was dismissed by this Court vide order dated 4.4.2014 in view of the statement made by learned counsel for the petitioner that an Arbitrator has been appointed and the petitioner is participating in the proceeding before the Arbitrator. It appears that during the pendency of the arbitration proceeding, an Arbitrator was appointed on 1.3.2013.
Learned counsel for the petitioner while inviting the attention of this Court to arbitration clause, submitted that the respondent was required to appoint an Arbitrator within 30 days from the date of receipt of notice. However, the respondents have failed to appoint an Arbitrator within the period of 30 days. While inviting the attention of this Court to Section 11(8) of the Act, it was submitted that the Court should appoint an independent Arbitrator. In support of aforesaid submission, learned counsel for the petitioner has placed reliance on decisions of Supreme Court in the cases of Deep Trading Company Vs. Indian Oil Corporation and others (2013) 4 SCC 35, Dakshin Shelters Private Ltd., Vs. Geeta S. Johari, (2012) 5 SCC 152 and ACE Pipeline Contracts (P) Ltd., Vs. Bharat Petroleum Corpn., Ltd., (2007) 5 SCC 304.
On the other hand, learned counsel for the respondent submitted that infact the request which was made by the petitioner was not in clear terms and, therefore, the respondent has not forfeited the right to appoint an Arbitrator. I have considered the respective submissions made by learned counsel for the parties. At this stage, it is appropriate to notice Section 11(8) of the Act, which reads as under:-
â11. Appointment of arbitrators -
(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to -
(a) any qualifications required of the arbitrator by the agreement of the parties; and
(b) other considerations as are likely to secure the appointment of an independent and impartial arbitrator.â A Three Judge Bench of the Supreme Court while taking into account the requirement contained under Section 11(8) of the Act in para 20 in the case of Deep Trading Company Vs. Indian Oil Corporation and others (supra), has held as under:-
â20. Section 11(8) does not help the Corporation at all in the fact situation. Firstly, there is no qualification for the arbitrator prescribed in the agreement. Secondly, to secure the appointment of an independent and impartial arbitrator, it is rather necessary that some one other than an officer of the Corporation is appointed as arbitrator once the Corporation has forfeited its right to appoint the arbitrator under Clause 29 of the agreement.â It is pertinent to mention here that the decision rendered by the Supreme Court in the case of ACE Pipeline Contracts (P) Ltd., (supra), is a decision by a Two Judge Bench of the Supreme Court whereas, the case of Deep Trading Company Vs. Indian Oil Corporation and others (supra) is a decision rendered by Three Judge Bench of the Supreme Court, which binds this Court. In the instant case, from perusal of the notice dated 2.11.2012, it is evident that the petitioner had made a request that in case the claim of the petitioner is not settled, an Arbitrator be appointed.
Thereafter, the petitioner filed an application under Section 11(6) of the Act, 1996. During the pendency of the application, the respondent has appointed an Arbitrator on 1.3.2013. Thus, the respondent had forfeited the right to appoint an Arbitrator. In view of the principles laid down in the case of Deep Trading Company Vs. Indian Oil Corporation and others (supra) and to ensure the appointment of an independent and impartial Arbitrator, as laid down in Section 11(8) of the Act and taking into account the fact that the venue of arbitration is at Jabalpur, I deem it appropriate to appoint Mr. Justice S.C. Pandey (Retd.), as an Arbitrator to arbitrate the dispute between the parties. Learned counsel for the parties have submitted that they have no objection with regard to appointment of Mr. Justice S.C. Pandey as an Arbitrator to arbitrate the dispute between them. Office is directed to send a copy of this order to Mr. Justice S.C. Pandey. Accordingly, the arbitration case is disposed of.
C.C. as per rules.
(ALOK ARADHE) JUDGE