Karnataka High Court
M/S.Hindustan Steel Works ... vs Union Of India on 13 November, 2013
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 13th DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE Mr.JUSTICE H.BILLAPPA
C.M.P. No.32/2011
BETWEEN:
M/s.Hindustan Steel Works
Construction Ltd., 15th Floor
NSC Bose Building,
12, Mahatma Gandhi Road
Bengaluru - 560 001
Rep. by its Senior Manager
Personnel, Shri M G Suresh Kumar. ...Petitioner
(By Sri Sampath Bapat, Adv.)
AND:
Union of India, rep. by
1. The Chief Administrative Officer @
South Western Railway
18, Miller's Road, Bangalore.
2. The General Manager
South Western Railway
Hubli.
3. The Chief Engineer (Const.)
South Western Railway
Hubli.
4. Sri.D.K.Garg, CPDE/SWR/UBL
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South Western Railway, Hubli.
5. Smt.Radha Uday, Retd. FA & CAO
Post House, Kowdiar Sq; Kowdiar
Tiruvanthapuram-695003.
6. Sri.Ramesh Pinjani, CE/CN/BNC
South Western Railway
18, Miller's Road
Bangalore-560 046. ...Respondents
(By Sri.N.S.Sanjay Gowda, Adv.)
******
This Civil Misc. Petition is filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996, praying to appoint a sole
arbitrator to resolve the disputes and outstanding issues
between the parties in accordance with the provisions of
agreement bearing No.CAO/CN/BNC/72321/A.24/N/06 dated
04.04.2006 vide Annexure-A.
This CMP coming on for final hearing this day, the Court
made the following:
ORDER
Heard the learned counsel for the parties.
2. The petitioner has filed this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 praying to appoint an Arbitrator to resolve the dispute between the parties in terms of the agreement dated 4.4.2006 bearing No.CAO/CN/BNC/ 72321/A/24/IV/06 vide Annexure-A. 3
3. The 1st respondent called for tender for setting up of infrastructural facilities for new zone at Hubli on 25.7.2005. The petitioner's bid was accepted and acceptance letter dated 18.12.2005 was issued. Thereafter, agreement dated 4.4.2006 bearing No.CAO/CN/BNC/72321/A/ 24/IV/06 was entered into. As per the terms of the agreement, the respondents 1 to 3 were bound to hand over the entire site without any hindrance, furnish necessary designs and drawings, take necessary decisions and convey it and make periodical payments and the petitioner shall complete the work within the stipulated time at agreed rates. The respondents committed breach of contract. Therefore, the petitioner submitted in all 12 claims on 25.9.2007. The respondents were called upon to admit the claims and make payment or else constitute an Arbitral Tribunal in terms of Clause 64 of General Conditions of Contract.
4. On 5.10.2007, the petitioner's claims were referred to the Arbitral Tribunal. The respondents raised counter claim. On 21.11.2008, the Tribunal considered 8 claims, partly 4 allowing one claim and rejecting 7 claims and did not pronounce on the claim Nos.9 to 12. The counter claim was rejected. The award passed by the Arbitral Tribunal was challenged by the petitioner in A S No.7/2009. The rejection of counter claim was not challenged by the respondents. On 26.2.2010, the award was set aside and matter was remitted to the Arbitral Tribunal. Thereafter, the petitioner addressed a letter to the respondents to take up the matter. There was no response. Therefore, the petitioner has prayed to appoint an Arbitrator to adjudicate the matter.
5. The respondents have filed statement of objections contending that the petitioner had filed CMP No.110/2010 for the same relief. This court by its common order dated 26.4.2011 has dismissed the petition. Therefore, this petition is not maintainable.
6. It is stated, after disposal of CMP No.110/2010 and in view of the civil court order in A.S.No.7/2009 the respondents have taken steps to reconstitute the Arbitral 5 Tribunal and the Tribunal has been reconstituted. The Arbitral Tribunal has issued notice fixing the date as 16.8.2011. Therefore, the petition as become infructuous and it may be dismissed.
7. In the course of proceedings, this Court by its order dated 10.11.2011 has directed the respondents to suggest the name of alternative arbitrators. On 2.8.2012, the respondents 1 to 3 have been directed to comply with the order dated 10.11.2011. Thereafter, the respondents have filed a memo dated 4.10.2012 suggesting two names i.e., Sri.P.K.Kshatriya CE/CN/East/BNC and Sri.A.K.Mailk CPDE/Hubli. It is stated in the memo, that the Arbitral Tribunal may be constituted from the following;
1. Sri.D.K.Garge CE/TP/SWR/UBL
2. Sri.A.Selvaraj FA & CAO/CN/I/S.Rly
3. Sri.P.K.Kshtriya CE/CN/East/BNC or Sri.A.K.Malik CPDE/Hubli.
8. Thereafter, on 5.2.2013 this Court has observed that the petitioner would submit that the alternative Tribunal is 6 presided by the same officer. Therefore, the grievance would survive for consideration. The matter has been adjourned to 14.12.2013. Subsequently on 8.7.2013, at the request of the learned counsel for the respondents time has been granted till 22.7.2013 to suggest the name of the alternative Arbitrators. On 31.10.2013, time has been granted till 7.11.2013 to suggest the name of the alternative Arbitrators.
9. On 7.11.2013, the respondents have filed a memo suggesting the following four names to constitute Arbitral Tribunal;
1. Sri.Vijay Agarwal, CTE/SWR/UBL
2. Sri.I.B.Jha, CE/Plg/CN/BNC
3. Sri.Premchand, CETE/SWR/UBL
4. Sri.J.Vishwanathan, FA & CAO/G/SWR/UBL
10. The petitioner has filed a memo dated 7.11.2013 suggesting the name of Mr.V.K.Mourya, South Western Railway, Chief Engineer/Construction/N/Bangalore, as nominee of the petitioner.
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11. In the memo dated 4.10.2012 four names have been suggested. Out of them, two names i.e., Sri.A.Selvaraj, FA&CAO/CN/I/S.Rly and Sri.P.K.Kshatriya CE/CN/East/BNC are acceptable to both the parties. In so far as the third arbitrator is concerned, the learned counsel for the respondents submitted that one of the four persons mentioned in the memo filed on 7.11.2013 may be appointed as third Arbitrator. The learned counsel for the petitioner submitted that Sri.V.K.Mourya, South Western Railway, Chief Engineer/Construction/N/Bangalore may be appointed as third Arbitrator as he is qualified and working at Bangalore and it would facilitate smooth functioning of the Arbitral Tribunal.
12. The learned counsel for the respondent placing reliance on the decision of Hon'ble Supreme Court in Special Leave of Appeal (Civil) Nos.7959 - 7960/2013 submitted that Arbitrator needs to be appointed in terms of Arbitration Clause. The name suggested by the petitioner cannot be considered. The CMP filed by the petitioner in CMP No.110/2010 has been 8 rejected and Arbitral Tribunal has been constituted and therefore, the petition is liable to be rejected.
13. The learned counsel for the petitioner submitted that under Section 11(8) of the Act, it is for this Court to appoint an independent and impartial Arbitrator.
14. I do not find any merit in the submission of the learned counsel for the respondents. After dismissal of CMP No.110/2010 the respondents have constituted Arbitral Tribunal during the pendency of this petition. This court has directed to suggest alternative Arbitrators on 10.11.2011. Through memo dated 4.10.2012 the respondents have suggested two names i.e., P.K.Kshatriya CE/CN/East/BNC and Sri.A.K.Malik CPDE/Hubli and have requested to constitute the Arbitral Tribunal from the following;
1. Sri.D.K.Garge CE/TP/SWR/UBL
2. Sri.A.Selvaraj FA and CAO/CN/I/S.Rly.
3. Sri.P.K.Kshatriya CE/CN/East/BNC or Sri.A.K.Malik CPDE/Hubli.
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15. Thereafter, through memo filed on 7.11.2013 the respondents have suggested the following four names to constitute Arbitral Tribunal.
1. Sri.Vijay Agarwal CTE/SWR/UBL
2. Sri.I.B.Jha CE/Plg/CN/BNC
3. Sri.Premachand CETE/SWR/UBL
4. Sri.J.Vishwanathan FA and CAO/G/SWR/UBL.
16. The petitioner has suggested the name of Sri.V.K.Mourya SWR, CE/Construction/N/Bangalore as its nominee.
17. The petitioner and the respondents agree that Sri.A.Selvaraj, FA & CAO/CN/I/S.Rly and Sri.P.K.Kshatriya CE/CN/East/BNC can be appointed as Arbitrators. As regards third Arbitrator there is disagreement. The respondents have suggested eight names. Insofar as Sri.I.B.Jha, CE/Plg/CN/BNC is concerned, he has expressed his opinion in the previous proceedings. Therefore, he cannot be considered. The other names are Sri.Vijay Agarwal, CTE/SWR/UBL, Sri.Premchand, 10 CETE/SWR/UBL and Sri.J.Vishwanathan, FA & CAO/G/SWR/UBL. They are from Hubli. The petitioner has suggested the name of Sri.V.K.Mourya, South Western Railway, Chief Engineer/Construction/N/Bangalore as its nominee. Sri.Mourya is qualified and he is working at Bangalore. The learned counsel for the petitioner submitted that Sri.Vijay Agarwal, Sri.Premchand and Sri.J.Vishwanathan are from Hubli and they are burdened with many arbitration proceedings. Therefore, the name Sri.V.K.Mourya may be considered. There is no impediment to appoint Sri.V.K.Mourya as Arbitrator under Section 11(8) of the Act. In the circumstances, it is appropriate to appoint Sri.A.Selvaraj, FA & CAO/CN/I/S.Rly, Sri.P.K.Kshatriya CE/CN/East/BNC and Sri.V.K.Mourya, South Western Railway, Chief Engineer/Construction/N/Bangalore as arbitrators to adjudicate the dispute between the petitioner and the respondents.
Accordingly, the petition is allowed and Sri.A.Selvaraj, FA & CAO/CN/I/S.Rly, Sri.P.K.Kshatriya CE/CN/East/BNC and Sri.V.K.Mourya South Western Railway, Chief 11 Engineer/Construction/N/Bangalore are appointed as Arbitrators to adjudicate the dispute between the petitioner and the respondents in terms of the agreement dated 4.4.2006 bearing No.CAO/CN/BNC/72321/A/24/IV/06 vide Annexure- A. The senior most among the Arbitrators shall be the Presiding Arbitrator. The Arbitrators shall complete the arbitration proceedings as expeditiously as possible.
Sd/-
JUDGE Bkm.