Bombay High Court
Government Of Maharashtra Thr. Its ... vs Orchid Hotels Pune Private Limited on 6 November, 2019
Author: G.S. Patel
Bench: G.S. Patel
21-21.1-ARP127-18.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPLICATION NO. 127 OF 2018
Orchid Hotels Pune Pvt Ltd ...Petitioner
Versus
The Government of Maharashtra ...Respondent
WITH
ARBITRATION APPLICATION NO. 160 OF 2017
Ms Arti P Bhide, for the Petitioner in ARP/127/2018 and Respondent
No.1 in ARP/160/2017.
Ms Tanaya Goswami, for State (AGP) in ARP/127/2018 &
Petitioner in ARP/160/2017.
Ms Prabha Badodare, i/b Mangesh Joshi, Special Counsel for
Director for Sports and Youth Services, Maharashtra State.
CORAM: G.S. PATEL, J.
DATED: 6th November 2019 PC:-
1. This Arbitration Petition is fled by Orchid Hotels Pune Pvt Ltd ("Orchid Hotels"). The State Government has fled a separate Arbitration Petition No. 160 of 2017. Both petitions seek reconstitution of the Arbitral Tribunal.
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2. The contract in question pertains to the construction on a Build-Operate-and-Transfer or BOT basis of the Orchid Hotels on the Mumbai-Pune bypass. The precise nature of the claims and counter claims are perhaps not germane at this stage.
3. On 1st July 2016, RD Dhanuka J made an order on Arbitration Petition No. 12 of 2015 fled by Orchid Hotels noting that the State had appointed one MV Patil as nominee Arbitrator and that the Petitioner had appointed one Subhash Govind Pingle. They were directed to appoint a presiding Arbitrator. It seems that MV Patil was no longer available and therefore the State Government sought time to fle a disclosure statement of one Pravin Kide, Chief Engineer PWD. Mr Kide appears never to have taken up the assignment or entered upon the reference, and in its Arbitration Petition No. 160 of 2017, therefore, the State Government seeks the substitution of the name of MV Patil with the name of one CD Fakir who is said to be a retired Chief Engineer.
4. More alarmingly, I fnd that nothing at all has happened in this Arbitration. Leave alone any pleadings or hearings, even the third/presiding Arbitrator has not yet been appointed. Both sides agree that not a single meeting has been held. On one side is the claim of Orchid Hotels and this is necessarily a commercial concern. On the other is the Government which is defending its claims to revenue and statutory dues charges. Neither of these competing claims is being addressed and no purpose at all is being served by appointing one person after the other and then constantly seeking a reconstitution. When the Government is a litigant to a commercial Arbitration proceeding, I believe it is reasonable to expect that it will Page 2 of 3 6th November 2019 ::: Uploaded on - 07/11/2019 ::: Downloaded on - 08/11/2019 00:28:37 ::: 21-21.1-ARP127-18.DOC act with some commercial prudence. The entire concept of 'the ease of doing business', of which this Government latterly so often speaks, must necessarily include the Government itself and must inform the manner in which it goes about doing its business. This endless delay is simply no way to function. It is clearly in the interest of both sides that the disputes be resolved at the earliest possible and without further delay. In any event, that is the mandate of the Arbitration Act.
5. In my view it would be appropriate if all disputes were to be referred to a sole Arbitrator. If parties are unable to agree, then at the very least they should be willing to leave the choice of a sole Arbitrator to the Court. Whether this needs to be a technical person or can be an Advocate of this Court is a matter that can be decided at a later stage.
6. Both sides are directed to keep present in Court on the next occasion a sufciently senior and an authorised person competent to give instructions. The State Government will decide whether it is the PWD or the Sports and Welfare Department that will be giving the necessary instructions. I would expect the person sufciently authorised to be present. In order to ensure that this happens, the learned Advocates appearing for the State Government will communicate a copy of this order to the Secretaries of both Departments.
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