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Himachal Pradesh High Court

Patel Engineering Ltd vs Ministry Of Power And Another on 14 June, 2019

Author: Dharam Chand Chaudhary

Bench: Dharam Chand Chaudhary

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Arb. Case No. 3 of 2019 Decided on: 14.06.2019 .

Patel Engineering Ltd. .......Petitioner Versus Ministry of Power and another ......Respondents Coram The Hon'ble Mr. Justice Dharam Chand Chaudhary, Acting Chief Justice Whether approved for reporting?1No.

       For the petitioner:                 Mr. Bhupender Gupta, Senior
                            r              Advocate with Mr. Janesh Gupta
                                           and  Ms.    Salooni  Aggarwal,

                                           Advocates.
       For the respondents:                Mr. Rajesh Kumar,                ASGI       for
                                           respondent No.1.


                                           Mr.  K.D.   Shreedhar,                 Senior
                                           Advocate    with   Ms.                  Tanvi
                                           Chauhan,      Advocate                    for
                                           respondent No.2.

Dharam Chand Chaudhary, ACJ (Oral) The disputes have arisen between the parties in connection with contract agreement No. RHEP - 10/2007 package-2.0 (ICB No. CCD-RHEP-402-2) dated 15 th March, 2007. The disputes so arisen could not be settled amicably. Therefore, in terms of Arbitration Clause 20.6 which read as follows:-

"Unless settled amicably, any dispute in respect of which the DB's decision recommendations (if any) has not been accepted by either party and notice giving intention to commence Arbitration has been served under sub-clause 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

20.4, shall be finally settled (subject to further rights conferred upon under the law) by Arbitration as per Indian Arbitration and Conciliation Act 1996 in case of disputes .

between the Employer and a domestic Contractor, and under the rules of Arbitration of the International Chamber of Commerce in case of disputes between the Employer and a foreign contractor, subject to following:

(a) Disputes shall be settled by three Arbitrators, one each to be nominated by the parties and third one to be appointed by the Secretary (Power), Ministry of Power, Government of India in case of disputes between the Employer and a domestic Contractor, whereas, in case of dispute between the employer and a foreign contractor, the third arbitrator shall be appointed by the International Chamber of Commerce. The definition of domestic bidders and foreign bidders shall be as defined in the World bank guidelines (latest addition)

(b) The venue of arbitration shall be either Shimla or Delhi or Project site only.

The arbitrator(s) shall have full power to open up, review and revise any certificate, determination, instruction, opinion or valuation of the Engineer, and any decision of the DB, relevant to the dispute. Nothing shall disqualify the Engineer from being called as a witness and giving evidence before the arbitrator(s) on any matter whatsoever relevant to the dispute.

Neither party shall be limited in the proceedings before the arbitrator(s) to the evidence or arguments previously put before the DB to obtain its decision, or to the reasons for dissatisfaction given in its notice of dissatisfaction. Any decision of the DB shall be admissible in evidence in the arbitration.

Arbitration may be commenced prior to or after completion of the works. The obligation of the parties, the Engineer and the DB shall not be altered .

by reason of any arbitration being conducted during the progress of the works."

..the petitioner and proforma respondent have nominated one Arbitrator each. Respondent No.1, however, failed to nominate the 3rd Arbitrator, the present petition came to be filed in this Court with a prayer to appoint the 3rd Arbitrator. It is seen that the 1 st respondent had given the profile of two former bureaucrats and sought them to be appointed as the 3 rd Arbitrator. The parties, however, have urged that Government of India be persuaded to suggest name of a former Judge of the Hon'ble Supreme Court for being appointed as the 3 rd Arbitrator. Although, Hon'ble Mr. Justice A.K. Sikri, Judge (Retired) Supreme Court was proposed to be appointed as 3rd Arbitrator by the 1st respondent, yet since his Lordship has now been appointed as the Chairperson of the New Broadcasting Standards Authority (NBSA), therefore, in view of this development, now it may be not possible to appoint his Lordship as the 3rd Arbitrator.

2. Since as per the order dated 29.03.2019 the parties want a former Judge of the Hon'ble Supreme Court to be the 3rd Arbitrator, therefore, Hon'ble Mr. Justice ::: Downloaded on - 28/09/2019 23:28:47 :::HCHP Kurian Joseph, Judge (Retd.) is a fit person to be appointed as 3rd Arbitrator in this matter and is hereby appointed as .

such. It is expected from learned Arbitrator(s) to enter upon the reference at the earliest, after the authorization and an authenticated copy of this judgment to be supplied by the Registry, is received. It is left open to learned Arbitrator to settle the fee payable to him, at his own, as provided under the Act. The fee, however, will be shared by the parties to this petition equally. The mode of payment of fee is also left open to be decided by learned Arbitrator.

3. The petition is accordingly allowed and stands disposed of, so also the pending application(s), if any.

(Dharam Chand Chaudhary) Acting Chief Justice June 14, 2019 (naveen) ::: Downloaded on - 28/09/2019 23:28:47 :::HCHP