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Rudraksh Enterprises vs Union Of India & Anr on 20 April, 2023

Author: Navin Chawla

Bench: Navin Chawla

            $~3
            *        IN THE HIGH COURT OF DELHI AT NEW DELHI
            +        ARB.P. 315/2023
                     RUDRAKSH ENTERPRISES                   ..... Petitioner
                                     Through: Mr.Pradeep Tripathi, Adv.

                                        versus

                     UNION OF INDIA & ANR.                       ..... Respondents
                                   Through:         Mr.Anurag Ahlwalia, CGSC
                                                    with Mr.Tarveen Singh Nanda,
                                                    GP alongwith Mr.Madan Singh,
                                                    AGC
                     CORAM:
                     HON'BLE MR. JUSTICE NAVIN CHAWLA
                                  ORDER

% 20.04.2023

1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the "Work Order No.1"

dated 30.11.2019 regarding work of " repairs/replacement of drain, RCC Drain covers, gate, grills path, hard standing, compound wall, retaining wall etc and other maintenance work of technical area A&B at IRDE" placed by the respondent no.2 on the petitioner.

2. Disputes having arisen between the parties, the petitioner invoked the Arbitration Agreement vide notice dated 31.10.2020 requesting the respondent no.1 to appoint an Arbitrator. The respondent no.1, vide its order dated 26.03.2021, appointed an Arbitrator, who resigned on 10.12.2021. By a correspondence dated 21.12.2022, the respondent no.1 called upon the petitioner to give consent for the appointment of an officer from the Department itself as an Arbitrator and waive off the objection under Section 12(5) of the Act. The petitioner did not agree to the same, upon which the Signature Not Verified respondent no.1 declined the appointment of an Arbitrator.

3. Though, no reply to this petition has been filed, the learned counsel for the respondents submits that in terms of Clause 7 (b) of the Tender document, pursuant to which the petitioner was awarded the work, the disputes have to be referred to the arbitration of a serving officer having degree of Engineering or equivalent. He submits that therefore only a serving officer can act as an Arbitrator.

4. I am unable to agree with the submission made by the learned counsel for the respondents. In terms of Section 12(5) of the Act, as explained by the Supreme Court in Perkins Eastman Architects DPC and Another vs. HSCC (India) Limited, (2020) 20 SCC 760, the officer of the respondent no.1 cannot act as an Arbitrator, unless such objection is expressly waived by the petitioner. As noted hereinabove, the petitioner is not ready to give such waiver.

5. In view of the above, as the existence of the Arbitration Agreement is not disputed, I see no impediment in appointing a Sole Arbitrator. I, accordingly appoint Ms. Sarika Mehta, Advocate (Mobile: 9654612375) as a Sole Arbitrator.

6. The learned Arbitrator shall give a disclosure in terms of Section 12 of the Act before entering upon the reference.

7. The fee of the learned Arbitrator shall be governed in terms of Schedule IV of the Act.

8. The petition is allowed in the above terms.

NAVIN CHAWLA, J APRIL 20, 2023/Arya Signature Not Verified Digitally Signed By:SUNIL Signing Date:21.04.2023 16:55:42