Delhi High Court - Orders
M/S Skyline Engineering Contracts ... vs M/S Mmr Saha Infrastructure Pvt. Ltd on 27 November, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~60 & 61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 140/2024
M/S SKYLINE ENGINEERING CONTRACTS (INDIA) PVT. LTD.
.....Petitioner
Through: Mr. Rupesh Gupta and Ms. Kritika
Tuteja, Advocates
versus
M/S MMR SAHA INFRASTRUCTURE PVT. LTD. .....Respondent
Through:
+ O.M.P. (T) (COMM.) 141/2024
M/S SKYLINE ENGINEERING CONTRACTS (INDIA) PVT. LTD.
.....Petitioner
Through: Mr. Rupesh Gupta and Ms. Kritika
Tuteja, Advocates
versus
M/S MMR SAHA INFRASTRUCTURE PVT. LTD. .....Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 27.11.2024 I.A. 46237/2024 (Exemption) in O.M.P. (T) (COMM.) 140/2024 I.A. 46238/2024 (Exemption) in O.M.P. (T) (COMM.) 141/2024 Allowed, subject to all just exceptions.
O.M.P. (T) (COMM.) 140/2024 O.M.P. (T) (COMM.) 140/2024 etc. Page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/12/2024 at 23:28:40 O.M.P. (T) (COMM.) 141/2024
1. The Petitioner has approached this Court under Section 15 of the Arbitration & Conciliation Act, 1996 for appointment of a substitute arbitrator.
2. Material on record indicates that an Arbitrator had been appointed by this Court vide Order dated 16.08.2024 in ARB.P. 1116/2024. However, the Claimant expressed its inability to pay the fee fixed by the Arbitrator as it would be beyond the Fourth Schedule of the Arbitration & Conciliation Act, 1996.
3. In view of the inability of the Petitioner to pay the fee fixed which was beyond the schedule of fee prescribed under the Fourth Schedule of the Arbitration & Conciliation Act, 1996, the Arbitrator has recused himself vide an e-mail dated 09.10.2024 and hence the Petitioner has approached this Court for appointment of a substitute Arbitrator under Section 15 of the Arbitration & Conciliation Act.
4. Section 15(2) of the Arbitration & Conciliation Act provides that if the Arbitrator withdraws from his office, then a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.
5. Clause 98 of the agreement contains Arbitration which provides the procedure for appointment of arbitrator. The same is reproduced as under:-
"Any difference, dispute, controversy or claim (Dispute) which may arise between the parties hereto out of or in relation to or in connection with this agreement, or the break termination, effect, validity, interpretation or application of this agreement or as to their rights, duties or liabilities hereunder other than a dispute for which provision is specifically made in this O.M.P. (T) (COMM.) 140/2024 etc. Page 2 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/12/2024 at 23:28:40 agreement, shall be settled by the parties by mutual negotiations and agreement. If, for any reason such dispute cannot be resolved amicably by the parties hereto within 60 calendar days of the Dispute being notified by one party to the other, the same shall be settled by way of arbitration proceedings by a sole arbitrator if both the parties give consent in writing to the mutually selected arbitrator within 30 days of either party giving notice to invoke the arbitration to the other party and failing which, the same shall be settled by way of arbitration proceeding by three arbitrators, one to be nominated by each of the Contractor and Project Developer and the third to be appointed by the two arbitrators so appointed. The arbitration proceedings shall be held in accordance with Arbitration and Conciliation Act, 1996, or any subsequent enactment or amendment thereto ("the Arbitration Act"). The decision of the arbitrators shall be final and binding upon the parties. The venue of the arbitration shall be Delhi, India. The language of the arbitration and the award shall be English.
Subject to the preceding clause, the parties agree to submit to the exclusive jurisdiction of the competent courts in Delhi, with regard to any question or matter arising out of this arbitration proceedings in pursuance hereto or arising here from.
The Contractor shall not, except with the consent in writing of the Project Developer and Project Manager, in any way delay the carrying out of the Work by reason of such matter, question or dispute being referred to arbitration. On the contrary the Contractor shall proceed with the Work with all due diligence and shall, until the decision of the arbitrator is given, abide by the decision of the Project Manager. The award of the arbitrator shall not relieve the Contractor of his obligations to adhere strictly to the Project O.M.P. (T) (COMM.) 140/2024 etc. Page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/12/2024 at 23:28:40 Developer's representative / Project Manager's instructions with regard to the actual carrying out of the Work, save and except as the Award may specifically affect such instructions."
6. Issue notice.
7. On taking steps, let notice be issued to the Respondent through all permissible modes, including Dasti.
8. Pending the service of notice, the Petitioner is directed to follow the procedure as provided under the Arbitration clause and make an endeavour to see if an Arbitrator can be appointed by way of mutual consent.
9. List on 27.01.2025.
SUBRAMONIUM PRASAD, J NOVEMBER 27, 2024 hsk O.M.P. (T) (COMM.) 140/2024 etc. Page 4 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 13/12/2024 at 23:28:41