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Mahakaleshwar Infratech Private ... vs Chief Engineer National Highways ... on 28 July, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~4
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     ARB.P. 1081/2021
                                MAHAKALESHWAR INFRATECH PRIVATE LIMITED
                                                                         ..... Petitioner
                                           Through: Mr. Rahul Sagar Sahay, Advocate
                                                    with Mr. Suvir Sharma, Advocate,
                                                    Mr. Prakhar Khanna, Advocate, Mr.
                                                    Vishal Singh, Advocate and Mr.
                                                    Raghav Ramalani, Advocate.

                                                   versus

                                CHIEF ENGINEER NATIONAL HIGHWAYS DIVISION UPPWD
                                                                          ..... Respondent
                                             Through: Ms. Mukti Chowdhary, Advocate
                                                      with Ms. Rashmi Singh, Advocate.

                                CORAM:
                                HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                   ORDER

% 28.07.2022 By way of the present petition under section 11 (6) of the Arbitration & Conciliation Act 1996 ('A&C Act' for short), the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that have arisen from an Engineering, Procurement and Construction Agreement dated 02.05.2018 executed between the parties.

2. Notice on this petition was issued on 26.11.2021; consequent to which the respondent has filed its reply dated 19.07.2022.

3. Mr. Rahul Sagar Sahay, learned counsel for the petitioner has drawn the attention of this court to clause 26.3 of the agreement dated Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.07.2022 Arb. P. 1081/2021 Page 1 of 4 13:50:45 02.05.2018 which comprises the arbitration agreement between the parties; and contemplates reference of disputes between the parties to arbitration in accordance with the Rules of the Society for Affordable Redressal of Disputes (SAROD).

4. On the last date, Ms. Mukti Chowdhary, learned counsel for the respondent had pointed-out that the petitioner was not agreeable to arbitration as per clause 26.3 of the agreement; and had sought further time to file a reply to the petition.

5. Ms. Chowdhary now submits that regardless of what is stated in the reply filed by the respondent, if the petitioner is agreeable to arbitration in accordance with the SAROD Rules; and an arbitrator is appointed from the list of arbitrators empanelled under the SAROD scheme, the respondent is ready and willing to have the disputes between the parties referred to arbitration.

6. Mr. Sahay, learned counsel for the petitioner is agreeable to this course of action so long as this court appoints an arbitrator to adjudicate upon the disputes that have arisen between the parties.

7. Counsel jointly submit that instead of a 03-member arbitral tribunal as contemplated in Rule 11 of the SAROD Rules, for disputes above Rs.3 crores, both parties are willing to have their disputes referred to a sole arbitrator under the SAROD Rules.

8. Along with their reply, the respondent has filed on record a list of the SAROD empanelled arbitrators. Counsel submit that this court may appoint an arbitrator from this list.

9. Other things apart, it is noticed that Rule 23 of the SAROD Rules provides that the seat of arbitration shall be New Delhi.

10. Upon a conspectus of the averments contained in the petition, the stand taken by the respondent and the submissions made, this court is satisfied that there is a valid and subsisting arbitration agreement between the parties; that this court has territorial jurisdiction to entertain and decide the present petition; and also that the disputes that are stated to have arisen between the parties as set-out inter-alia in demand/invocation notice dated 02.07.2021 issued by the petitioner do not appear ex-facie to be non-arbitrable.

11. Accordingly, Hon'ble Mr. Justice Deepak Gupta, former Judge of the Supreme Court of India (Cellphone No. : +91 9816533333), is appointed as the learned Sole Arbitrator to adjudicate upon the disputes between the parties.

12. The learned Sole Arbitrator may proceed with the arbitral proceedings subject to furnishing to the parties requisite disclosures as required under section 12 of the A&C Act; and in the event there is any impediment to the appointment on that count, the parties are given liberty to file an appropriate application in this court.

13. The learned Sole Arbitrator shall be entitled to fee as provided under the SAROD Rules; or as may otherwise be agreed to between the parties and the learned Sole Arbitrator.

14. Parties shall share the arbitrator's fee and arbitral costs as per SAROD Rules.

15. All rights and contentions of the parties in relation to their claims/counter-claims are left open, to be considered and decided by the learned Sole Arbitrator, in accordance with law.

16. Parties are directed to approach the learned Sole Arbitrator appointed within 10 days.

17. The petition stands disposed of in the above terms.

18. Other pending applications, if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J JULY 28, 2022 Ne Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.07.2022 Arb. P. 1081/2021 Page 4 of 4 13:50:45