Delhi High Court - Orders
M.G. Contractors Pvt.Ltd vs Tata-Aldesa(Jv) on 22 March, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 325/2020
M.G. CONTRACTORS PVT.LTD ..... Petitioner
Through Mr. Manoj Kumar Das, Mr. Deepak
Kumar and Ms. Geeta Das, Advs.
versus
TATA-ALDESA(JV) ..... Respondent
Through Mr. Naveen Chawla and Mr. Mayank
Bughani, Advs.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 22.03.2021 I.A. No.2121/2021
1. For the reasons stated in the application, the same is allowed and the delay in filing the rejoinder is condoned.
ARB.P. No.325/20202. The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter the 'A&C Act'), inter alia, praying that an Arbitrator person be appointed from the panel of Arbitrators of Dedicated Freight Corridor Corporation of India Ltd. (DFCCIL) as the nominated Arbitrator on behalf of the respondent.
3. The respondent had awarded the work of 'Supply and Carrying Out of Earth Work and Blanketing Box Culverts & Minor Bridges Which Was Part of The Work Related to "Eastern Dedicated Freight Corridor", of Package 102, Section - 3', by a Work Order dated 10.10.2013. Clause 22 of the Signature Not Verified Digitally Signed By:DUSHYANT RAWAL General Conditions of the Contract (GCC) as applicable on the said Work Order contains an Arbitration Clause, which reads as under:
"Sub Clause 20.6 Arbitration Unless settled amicably, any dispute in respect of which the DAB's decision (if any) has not become final and binding shall be finally decided by reference to arbitration by a Board of Arbitrators appointed in accordance with sub-clause (i) below. Such arbitration shall be held in accordance with the Indian Arbitration and Reconciliation Act, 1996. The seat of such arbitration shall be New Delhi, and the language of arbitration proceedings shall be English.
The employer shall provide a panel of five (5) arbitrators to the contractor. The employer at the time of offering the panel of Arbitrator(s) to be appointed as Arbitrator shall also supply the information with regard to the qualification of the said Arbitrators nominated in the panel along with their professional experience, phone no. and address to the contractor. The contractor shall have to choose one Arbitrator from the panel of five. The employer shall also choose one Arbitrator from this panel of five.
The third arbitrator shall be appointed by the two arbitrators from the panel of five so selected and shall act as presiding arbitrator. In case of failure of the two Arbitrators, appointed by the parties, to reach upon a consensus within a period of 28 days from their appointment as Arbitrators, the Presiding Arbitrator shall then be appointed by MD/DFCCIL. Arbitrator's Fee and other admissible expenses shall be as per extant DFCCIL instructions."
4. The petitioner claims that the said work was completed in August, Signature Not Verified Digitally Signed By:DUSHYANT RAWAL 2017 and the petitioner raised its 41st and Final Bill on 13.11.2017. The petitioner alleges that since payments amounting to ₹29,19,03,235.14 were not released, the petitioner issued a notice invoking the said Arbitration Clause. It is stated that, thereafter, a meeting was held between the representatives of the petitioner and the respondent on 03.07.2019 and according to the respondent, the petitioner agreed to accept ₹3,41,73,057/- in full and final settlement of its claims. The petitioner alleges that the respondent did not pay the amount as agreed. In addition, the petitioner claims the amount claimed by it did not include certain bills, which were not verified.
5. The petitioner states that, thereafter, the respondent sought a No Objection Certificate from the petitioner. However, the petitioner did not release the same. According to the petitioner, disputes remained unsettled and therefore, it issued another notice dated 18.03.2020 invoking the said Arbitration Clause and appointed its nominee Arbitrator. However, the respondent has failed to appoint its nominee Arbitrator. In the circumstances, the petitioner has filed the present petition
6. The learned counsel appearing for the respondent submits that the parties had arrived at a full and final settlement and the same was recorded in the Minutes of Meeting dated 03.07.2019. In this view, the disputes as sought to be raised do not survive.
7. The learned counsel appearing for the petitioner disputes the same. He states that the terms of the Minutes of Meeting dated 07.07.2019 expressly provide that the petitioner would withdraw its arbitration notice subject to the agreed payments being made. However, the said payment obligations were not met by the respondent and therefore, the petitioner is Signature Not Verified Digitally Signed By:DUSHYANT RAWAL not precluded from referring the disputes to arbitration.
8. This Court is not required to examine the rival disputes between the parties. However, it is seen that the entire payment, as agreed in terms of the Minutes of Meeting dated 03.07.2019, has not been made.
9. Since there is no dispute as to the existence of the Arbitration Clause or that the petitioner had invoked the Arbitration Clause, the Arbitral Tribunal is required to be constituted.
10. The learned counsel for the parties jointly request, on instructions, that instead of a tribunal of three members, a Sole Arbitrator may be appointed. They further request that arbitration be conducted under the aegis of the Delhi International Arbitration Centre (DIAC) and in accordance with its rules.
11. In view of the above, this Court considers it apposite to allow the present petition. Accordingly, this Court proposes to appoint Justice Manmohan Sarin, former Chief Justice of the High Court of Jammu and Kashmir (Mobile No.- 9818000210) as the Sole Arbitrator to adjudicate the disputes that have arisen between the parties.
12. The parties are at liberty to approach the learned Sole Arbitrator for eliciting his consent and necessary disclosure under Section 12 (1) of the A&C Act. Let the same be furnished before the next date of hearing.
13. It is directed that the arbitration shall be conducted under the aegis of the DIAC and in accordance with its Rules.
14. List on 26.04.2021.
VIBHU BAKHRU, J MARCH 22, 2021/dr Signature Not Verified Digitally Signed By:DUSHYANT RAWAL