Delhi High Court
Sarvesh Chopra Builders Pvt. Ltd vs Union Of India & Ors on 24 September, 2009
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ A.A.No.167/2009
% Date of decision:24.09.2009
SARVESH CHOPRA BUILDERS PVT. LTD. ....Petitioner
Through: Mr. Kirti Uppal with Mr. Sanjeet
Singh, Advocates.
Versus
UNION OF INDIA & ORS. .. Respondents
Through: Mr. A.S. Dateer, Advocate for the
Respondents No.1&2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition is under Section 11 of the Act. The case has a chequered history. The petitioner filed suit No.2868/1994 under Section 20 of the Arbitration Act, 1940. The same was disposed of along with several other suits vide order dated 6th November, 2000 with a direction to the General Manager of the respondent Northern Railway to appoint the arbitrator. Though in the typed copy of the order filed along with these petitions the direction is for appointment of arbitrator "in terms of Clause 16 of the agreement" it appears that the reference to Clause 16 is a typographical error. Though the petitioner has along with this petition not filed the arbitration clause but it is the admitted position that the arbitration clause relied upon is as contained in the General Conditions of contract of the Railways. A.A.No.167/2009 Page 1 of 4 In the said order dated 6th November, 2000 it has also been held that the arbitration proceedings will be governed by the Arbitration Act, 1996 between the parties.
2. It is also the admitted position that one Mr. S.K.Puri was appointed as the arbitrator pursuant to the aforesaid order dated 6th November, 2000.
3. Arbitration Petition No.122/2007 U/s 11 of the 1996 Act came to be filed by the petitioner relating to the same arbitration agreement and disputes. The same was disposed of on 22nd February, 2008. Vide said order, in view of Mr. S.K. Puri being not available for arbitration, Ms. Tarika Roy was appointed as the arbitrator.
4. The petitioner has now filed this petition contending that upon the said Ms. Tarika Roy also being unable to act, the respondent appointed one Mr. Naveen Gulati as the arbitrator, who has also failed to act and hence he seeks the appointment of an independent sole arbitrator.
5. The respondent has contested the petition on three grounds. Firstly, it is contended that the petition under Section 11 of the Arbitration Act, 1996 is not maintainable as the disputes between the parties arose under the 1940 Act and since suit under Section 20 of the 1940 Act was initially filed. Secondly, it is denied that Mr. Naveen Gulati was appointed as the arbitrator in this case. It is contended that Mr. Naveen Gulati was appointed in arbitration proceedings between the petitioner and the respondent under some other contract. Lastly, it is contended that as per the arbitration clause in the General Conditions of Contract of the Railways, A.A.No.167/2009 Page 2 of 4 arbitration is to be by a panel of three arbitrators of which one is to be selected by the contractor i.e. the petitioner herein and the other two by the respondent. It is stated that Mr. S.K.Puri & Ms. Tarika Roy aforesaid were but one of the panel of arbitrators and not the sole arbitrator and the arbitration is to be in accordance with the arbitration clause in the agreement between the parties.
6. As far as the first of the aforesaid submissions is concerned, in view of the order dated 6th November, 2000 expressly holding that the arbitration shall be governed by the 1996 Act and which order has attained finality between the parties, it is now not open to the respondent to contest the said position. Not only so, thereafter application under Section 11 of the Act as aforesaid was entertained in the same arbitration agreement/proceedings. The order dated 22nd February, 2008 disposing of the same does not show that any opposition was made by the respondent Railways at that time to the applicability of the 1996 Act.
7. As far as the other two contentions of the respondent are concerned, the counsel for the petitioner has stated that for the sake of expediency, he has no objection if the arbitration is by a panel of three arbitrators as contended by the counsel for the respondent and that the petitioner be permitted to now nominate one member from the panel of the arbitrators of the respondent and the respondent Railways be directed to nominate the other two arbitrators within a time bound schedule and further subject to the arbitration proceedings being concluded in a time bound manner. A.A.No.167/2009 Page 3 of 4
8. Accordingly, this petition is disposed of with the directions; (i) that the respondent shall within four weeks hereof deliver to the counsel for the petitioner the list of arbitrators in its panel; (ii) the petitioner shall within ten days thereof nominate one arbitrator from the said panel; (iii) the respondent Railways shall within two weeks thereafter appoint/nominate the other two arbitrators; (iv) the Arbitral Tribunal so constituted to conclude the arbitration proceedings within one year of the date of first appearance of the parties before the Arbitral Tribunal; (v) if there is any earlier arbitral record, the respondent Railways to ensure that the same is delivered to the Arbitral Tribunal so constituted before the date of the first appearance.
RAJIV SAHAI ENDLAW (JUDGE) September 24th, 2009 pp A.A.No.167/2009 Page 4 of 4