Delhi High Court - Orders
M/S Shivhare Road Lines vs Container Corporation Of India Ltd on 22 October, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 85/2019 & I.A. 13991/2019
M/S SHIVHARE ROAD LINES ..... Petitioner
Through Mr Avneesh Garg, Mr M.T. Reddy,
Advocates.
versus
CONTAINER CORPORATION OF INDIA LTD. ..... Respondent
Through Mr R.K. Joshi, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 22.10.2021
IA 13991/2019
1. The petitioner has filed the present application, inter alia, praying that the delay of 210 days in re-filing the petition be condoned.
2. The present petition was filed on 18.02.2019 but was found defective. It was returned for refiling on 20.02.2019. It was refiled on 31.05.2019 but was defective. It was thereafter filed and returned on multiple occasions. It is noted that during the process the Registry had also pointed fresh defects which were not pointed earlier.
3. The learned counsel for the petitioner states that the file was also by mistake tagged with another file in his chamber and that also led to delay in refiling.
Signature Not Verified Digitally Signed By:DUSHYANT RAWAL4. Considering the above, the delay in refiling is condoned.
O.M.P. (T) (COMM.) 85/2019
5. The petitioner has filed the present petition, inter alia, praying as under:
"Pass an Order declaring that the mandate of Ld. Sole Arbitrator - Sh. K. Narayan (erstwhile General Manager of the Respondent) to act as an arbitrator to adjudicate the disputes between the petitioner (Claimant) and Respondent as arising out of the Contract being Work Order No. CON/NGP/RO/832/10 dated 02.04.2007 for hiring of equipments for handling of Containers at ICD Bhusawal stands terminated for the reasons mentioned in the present petition."
6. The parties had entered into a Contract dated 17.04.2007 (hereafter 'the Agreement') for hiring of equipment of the petitioner for handling of Containers at Bhusawal Container Terminal operated by the respondent.
7. It is stated that disputes arose between the parties in connection with the Agreement and the petitioner invoked the Arbitration Clause as contained in the Agreement. Thereafter, the respondent appointed one of its General Manager-Finance as the Sole Arbitrator to adjudicate the disputes between the parties. Although, the learned Arbitrator entered reference in the year 2011, the arbitral proceedings did not progress much during the next four years.
8. The parties filed their respective pleadings in the year 2015 and the last effective hearing was held before the Arbitral Tribunal on 11.02.2015. The Arbitral Tribunal had also fixed hearings on 09.03.2015 and Signature Not Verified Digitally Signed By:DUSHYANT RAWAL 30.03.2015. However, those hearings were not held. The petitioner states that on 27.03.2015 it received a communication from the learned Arbitrator that the next date of hearing would be notified. However, the petitioner did not receive any further communication from the learned Arbitrator.
9. It is averred in the petition that the petitioner approached the office of the learned Arbitrator and was informed that the next date of hearing would be decided in due course.
10. On 01.05.2017, the petitioner sent an email to the learned Arbitrator once again requesting that a hearing be fixed in the matter, however, the said email remained unserved. The petitioner states that he also sent communications to the Secretary of the Arbitrator who also did not respond to the petitioner's request.
11. In the aforesaid circumstances, the petitioner has filed the present petition.
12. The learned counsel for the petitioner submits that thereafter, the petitioner was informed that the learned Arbitrator had recused himself from the arbitral proceedings as he was no longer holding office that he was holding at the material time.
13. Mr R.K. Joshi, learned counsel appearing for the respondent submits that since the Arbitrator was appointed by the Managing Director of the respondent, the petitioner was required to approach the Managing Director for appointment of an Arbitrator to fill the vacancy caused by the learned Arbitrator (Shri K. Narayan) withdrawing from the proceedings. He referred to the provisions of Section 15(2) of the A&C Act in support of his contention. The said contention is unmerited.
14. Before proceeding further, it would be relevant to refer to the Signature Not Verified Digitally Signed By:DUSHYANT RAWAL Arbitration Clause which is set out below:-
"37. ARBITRATION 37.1 Except where otherwise provided for in the contract, all questions and disputes relating to the meaning of the words, terms, specifications, operations, and instructions, mentioned in this contract and as to the quality of workmanship or performance of handling and/or transportation, any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, specification, operating, instructions, orders or these conditions; or otherwise concerning the transport and handling operations, the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof; shall be referred to the sole arbitration of CGM, CONCOR, and if CGM, CONCOR is unable or unwilling to act, to the sole arbitration of any such person appointed by the Managing Director, CONCOR, willing to act as such arbitrator. There will be no objection if the arbitrator so appointed is an employee of CONCOR.
37.2 If the Arbitrator, to whom the matter is originally referred, is being transferred or is vacating his office or is unable to act for any reason, the Managing Director, as aforesaid at the time of such transfer, or vacation of the office or inability to act, shall appoint another person to act as Arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage, at which it was left by his predecessor.
37.3.1 Subject as aforesaid, the provisions of the Signature Not Verified Digitally Signed By:DUSHYANT RAWAL Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof, and the rules made thereunder, and for the time being in force shall apply to the arbitration proceeding under this clause.
37.3.2 It is a term of the contract that the party invoking arbitration shall specify the disputes to be referred to arbitration under this clause together with the amount or amount claimed in respect of each dispute. The Arbitrator may from time to time, with consent of the parties, enlarge the time for making and publishing the award.
37.3.3 The work under the contract shall, if reasonable possible, continue during the arbitration proceedings and no payment due or payable to the contract shall be withheld on account of such proceedings.
37.3.4 The Arbitrator shall be deemed to have entered on the reference on the date on which he issues notices to both the parties fixing the date of the first hearing.
37.3.5 The Arbitrator shall have power to call for such evidence by way of affidavits or otherwise as the Arbitrator shall think proper and it shall be the duty of the parties hereto to do or cause to be done all such things as may be necessary to enable the Arbitrator to make the award without any delay.
37.4 The Arbitrator shall give a separate award in respect of each dispute or difference referred to him.
37.5 The venue of arbitrator shall be such place as Signature Not Verified Digitally Signed By:DUSHYANT RAWAL may be fixed by the Arbitrator in his sole discretion.
37.6 The Award of the Arbitrator shall be final, conclusive and binding on all parties to the contract."
15. Although the Arbitration Clause provides that the Managing Director of CONCOR (the respondent) would appoint the Arbitrator, it is no longer permissible for the Managing Director of CONCOR to do so in view of Section 12(5) of the A&C Act as interpreted by the Supreme Court in TRF Ltd. v. Energo Engineering Projects Ltd.: (2017) 8 SCC 377 and Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited: Arbitration Application No 32 of 2019, decided on 26.11.2019.
16. It is also seen that Clause 37.3.1 also expressly provides that any statutory modification or re-enactment of the A&C Act would also be applicable to the arbitration proceedings. Thus, notwithstanding, that the Managing Director of CONCOR could appoint an Arbitrator prior to the Arbitration and Conciliation (Amendment) Act, 2015 coming into force; clearly, it is no longer permissible for such appointment to be made in that manner.
17. In this view, the contention that the petitioner should be relegated to approach the Managing Director of CONCUR for filling up the vacancy caused on account of Shri K. Narayan withdrawing from the arbitral proceedings, is unmerited.
18. In view of the above, this Court considers it apposite to allow the present petition. Mr. S.C. Malik, ADJ (Retired) (Mobile No.9910384635) is Signature Not Verified Digitally Signed By:DUSHYANT RAWAL appointed as the Sole Arbitrator to adjudicate the disputes between the parties. This is subject to the Learned Arbitrator making the necessary disclosure as required under Section 12(1) of the A&C Act and not being ineligible under Section 12(5) of the A&C Act.
19. At the instance of the counsel for the parties, this Court further directs that the Arbitration shall be conducted under the aegis of Delhi International Arbitration Centre (DIAC) and in accordance with its Rules. The arbitral proceedings shall proceed from the same stage as currently obtaining.
20. The parties are at liberty to approach the Coordinator DIAC for further proceedings.
VIBHU BAKHRU, J OCTOBER 22, 2021 pkv Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:DUSHYANT RAWAL