Madras High Court
Taqa Neyveli Power Company Private ... vs Nlc India Limited on 24 August, 2018
Author: C. Saravanan
Bench: C. Saravanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.08.2018 CORAM THE HONOURABLE JUSTICE C. SARAVANAN O.P. No.726 of 2018 TAQA Neyveli Power Company Private Limited, rep. by Mrs.K.Raghunathan, Company Secretary, 79, Kasturi Avenue, MRC Nagar, RA Puram, Chennai 600 028 .. Petitioner -vs- NLC INDIA LIMITED rep. by its Chairman-cum-Managing Director, 135, EVR Road, Kilpauk, Chennai 600 010 .. Respondent Prayer: Petition filed under Section 11(6) of the Arbitration & Conciliation Act, 1996 to appoint a third, independent and impartial arbitrator to act as the presiding arbitrator of the three-member arbitral tribunal and adjudicate and decide the disputes between the parties. For Petitioner : Mr.P.S.Raman Senior Counsel for Mr.Thriyambak J. Kannan For Respondent : Mr.N.Nithianandan O R D E R
This petition seeks appointment of a Presiding Arbitrator to resolve the disputes between the petitioner and respondent.
2. Article 10.2 of the Fuel Supply Agreement reads contemplates resolution of disputes by arbitration. The petitioner has nominated Hon'ble Mr. Justice Badar Durrez Ahmed, former Judge of Delhi High Court as its nominee Arbitrator while the respondent has appointed Hon'ble Mr.Justice P.S.Gopinathan, former Judge of Kerala High Court as its nominee Arbitrator.
3. By an order dated 10.07.2018, this Court has directed the respondent to appoint a presiding Arbitrator in O.A.No.406 of 2018 within a period of two days from the date of receipt of order copy.
4. The petitioner had already nominated its arbitrator. The order was also deposed with a direction with two (2) Arbitrators to choose a third Arbitrator (Presiding Arbitrator) within a period of 30 days as provided in Article 10.2 of the agreement.
5. Article 10.2 of the Fuel Supply Agreement reads as under:
10.2 Arbitration of Disputes:
" (a) In the event the parties are unable to resolve any dispute pursuant to Section 10.1, then within thirty (30) days either party may notify the other party of its intention for settlement of the dispute by arbitration.
(b) Except as otherwise provided in this Agreement, any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration and Conciliation Act of 1996 (the "Act"). The arbitration shall be held in Chennai, India. The arbitration proceedings shall be conducted, and the award shall be rendered, in the English language.
(c) There shall be three arbitrators of whom each party shall appoint one. The two arbitrators thus appointed shall withing thirty (30) days of their appointment, agree on the third arbitrator who shall act as the presiding arbitrator of the tribunal. The party seeking resolution of the dispute by arbitration, shall appoint an arbitrator within thirty (30) days of the notification in terms of Section 10.2(a) and requests the other party to appoint an arbitration. If a party fails to appoint an arbitrator within thirty(30) days from the receipt of a request to do so from the other party or if the two Party-appointed arbitrators fail to agree on a third arbitrator, the arbitrator(s) not so appointed and the third arbitrator, as the case may be, shall be appointed in the manner provided in the Act.
(d) This Agreement and the rights and obligations of the parties shall remain in full force and effect pending the award in any arbitration proceedings hereunder."
6. It appears that communication have emanated and exchanged between the two Arbitrators nominated by each of the parties between the respective nominee Arbitrators and there have been some communications in this regard.
7. When the case was called for hearing today, both the learned counsel agreed that Hon'ble Mr.N.Santhosh Hegde, Former Judge, Supreme Court of India be appointed as Presiding Arbitrator of the Arbitral Tribunal.
8. Accordingly, Hon'ble Mr.N.Santhosh Hegde, former Judge, Supreme Court of India residing at Flat No.B-34, 2nd Floor, Embassy Palace Apartments, No.1/16, Cunningham Road, Bangalore - 560 052 (Contact No.080-22343738) is appointed as the Presiding Arbitrator to enter upon reference and adjudicate the disputes inter se between the parties.
9. Requirement of Section 11(8) of the Arbitration and Conciliation Act, 1996 is dispensed with as the appointment is made with the consent of the respective counsel.
10. The Original Petition is, accordingly, allowed, leaving the parties to bear their own costs.
24.08.2018 (2/2) msv C. SARAVANAN,J.
msv O.P. No.726 of 2018 24.08.2018