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M/S Jyoti Electricals Contractors vs M/S Container Corporation Of India ... on 1 August, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~8
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     ARB.P. 959/2021
                                M/S JYOTI ELECTRICALS CONTRACTORS               ..... Petitioner
                                                Through: Mr. Piyush Hans with Mr. Annv
                                                           Singh and Mr. Naveen Gupta,
                                                           Advocates.
                                                versus
                                M/S CONTAINER CORPORATION OF INDIA LIMITED
                                                                              ..... Respondent
                                                Through: Mr. Rishi K. Awasthi with Mr.Piyush
                                                           Vatsa, Advocates.
                                CORAM:
                                HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                ORDER

% 01.08.2022 The matter has come to be listed today upon directions of Hon'ble the Judge In-Charge (Original Side), advancing the date of hearing in the matter.

2. By way of the present petition under section 11 of the Arbitration & Conciliation Act 1996 ('A&C Act' for short), the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that are stated to have arisen with the respondent from Agreement for Work dated 11.05.2015.

3. Notice on this petition was issued on 15.11.2021; consequent to which the respondent has filed its counter-affidavit dated 04.03.2022.

4. Mr. Piyush Hans, learned counsel for the petitioner has drawn the attention of this court to clause 64 of the agreement which comprises the arbitration agreement between the parties; and contemplates reference of disputes between them to arbitration in accordance with the A&C Act.

5. Though the agreement does not contain any specific clause concerning territorial jurisdiction, it has been averred by the petitioner that this court has territorial jurisdiction to entertain this petition since the agreement in question was executed at New Delhi and the respondent is also based here; which facts have not been denied by the respondent.

6. As per the record, the petitioner invoked arbitration vidé communication dated 30.09.2019; to which the respondent sent no reply.

7. Mr. Rishi K. Awasthi, learned counsel for the respondent submits that the principal objection to the present petition is that the petitioner has not followed the procedure for settlement of disputes as agreed to between the parties, inter-alia as engrafted in clause 63 of the General Conditions of Contract ('GCCs' for short), under which the petitioner was required to make a representation of all disputes and differences arising from the contract to CONCOR; and CONCOR was thereafter to notify its decisions on all matters for which provision is made in clauses 8(a), 18, 22(5), 39, 43(2), 45(a), 55, 55-A(S), 57, 57-A. 61(1), 61(2) and 62(1)(b) of the GCCs or in any of the clauses of the Special Conditions of Contract ('SCCs' for short); all of which matters are deemed to be "excepted matters" and would therefore not be referable to arbitration.

8. Mr. Awasthi states that only those matters which do not fall within the purview of clause 63 as "excepted matters" would be referable to arbitration under clause 64(1)(i). Counsel submits that however, that Signature Not Verified ARB.P. 959/2021 Page 2 of 4 Digitally Signed By:SUNITA RAWAT Signing Date:03.08.2022 12:08:52 the petitioner has not followed the above-referred procedure; and therefore the present petition is premature and is not maintainable.

9. In response, learned counsel for the petitioner points-out, that in fact vidé its communications dated 30.09.2019 and 08.02.2020, the petitioner had made detailed representations to the General Manager, CONCOR by way of 'claim petitions'; but no response was received from the respondent, despite lapse of more than 120 days, which was the maximum period mandated in clause 64(1)(i) of the GCCs. By reason thereof, the petitioner contends that it has duly complied with the procedure for settlement of disputes, as agreed to between the parties; and the present petition is accordingly maintainable.

10. Upon a query as to whether the petitioner's claim is not prima-facie time barred, Mr. Hans points-out that, as recorded in communication dated 27.09.2019 issued by the respondent to the petitioner, part- payment in the sum of Rs. 10 lacs was made by the respondent on 08.08.2019 thereby extending limitation in accordance with section 19 of the Limitation Act, 1963; and therefore the claim is not time- barred.

11. Upon a conspectus of the averments contained in the petition 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 notice dated 30.09.2019 do not appear ex-facie to be non-arbitrable.

12. Accordingly, the present petition is allowed and Mr. Jawahar Raja, Advocate (Cellphone No. : +91 9810639608) is appointed as the learned Sole Arbitrator to adjudicate upon the disputes between the parties.

13. 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.

14. The learned Sole Arbitrator shall be entitled to fee in accordance with Fourth Schedule to the A&C Act; or as may otherwise be agreed to between the parties and the learned Sole Arbitrator.

15. Parties shall share the arbitrator's fee and arbitral costs, equally.

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

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

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

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

20. The date of 15.09.2022, stands cancelled.

ANUP JAIRAM BHAMBHANI, J AUGUST 01, 2022 ds Signature Not Verified ARB.P. 959/2021 Page 4 of 4 Digitally Signed By:SUNITA RAWAT Signing Date:03.08.2022 12:08:52