Karnataka High Court
M/S Rns Infrastructure Ltd vs The Chief Engineer on 29 July, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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CMP No. 35 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL MISC. PETITION NO. 35 OF 2022
BETWEEN:
M/S. RNS INFRASTRUCTURE LIMITED
A COPY REGISTERED UNDER
THE COMPANIES ACT
HAVING ITS OFFICE AT
NAVEEN COMPLEX
7TH FLOOR, 14, M.G. ROAD,
BENGALURU-560001
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI NAVEEN R. SHETTY
S/O LATE R.N. SHETTY
AGED ABOUT 54 YEARS
...PETITIONER
(BY SRI SANDEEP LAHIRI, ADVOCATE A/W
SMT.DEEPIKA JOSHI, ADVOCATE)
Digitally signed by
POORNIMA AND:
SHIVANNA
Location: HIGH
COURT OF THE CHIEF ENGINEER
KARNATAKA
NATIONAL HIGHWAYS, KARNATAKA
2ND FLOOR, PWD ANNEXE BUILDING
KR CIRCLE, BENGALURU-560001
...RESPONDENT
(BY SRI BHOJE GOWDA T.KOLLER, AGA)
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CMP No. 35 of 2022
THIS CIVIL MISC. PETITION IS FILED UNDER
SECTION 11(6) OF THE ARBITRATION AND CONCILIATION
ACT 1996, PRAYING THIS HON'BLE COURT TO EXERCISE
ITS JURISDICTION AND POWER UNDER SECTION 11(6)
OF THE ARBITRATION AND CONCILIATION ACT, 1996 AND
APPOINT A NOMINEE ARBITRATOR ON BEHALF OF THE
RESPONDENT, SO THAT THE ARBITRAL TRIBUNAL CAN BE
CONSTITUTED, IN ACCORDANCE WITH LAW, TO
ADJUDICATE AND RESOLVE THE DISPUTES THAT HAVE
ARISEN UNDER THE AGREEMENT DATED 03/10/2015
(ANNEXURE-A) BETWEEN THE PETITIONER AND THE
RESPONDENT AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a) To exercise its jurisdiction and power under Section 11 (6) of the Arbitration and Conciliation Act, 1996 and appoint a nominee Arbitrator on behalf of the Respondent, so that the Arbitral Tribunal can be constituted, in accordance with law, to adjudicate and resolve the disputes that have arisen under the Agreement dated:03.10.2015 (Annexure A) between the Petitioner and the Respondent.
b) Grant such other relief as this Hon'ble Court may consider deem fit and proper in the facts and circumstances of this case."
2. The petitioner has participated in a tender floated by the respondent. In pursuance of which, letter of acceptance was issued on 17.09.2015. The said letter -3- CMP No. 35 of 2022 of acceptance is followed by the EPC (Engineering Procurement and construction) agreement entered into between the parties on 03.10.2015. The EPC Agreement document, RFP document, Schedules for construction documents and Plan Profile and Typical cross section Drawings were made part of the said agreement.
3. In terms of clause 26.3 of the EPC agreement, any dispute between the parties is required to be resolved by arbitration. The relevant portion of clause 26.3 is reproduced hereunder for easy reference:-
"26.3 Arbitration 26.3.1 Any Dispute which is not resolved amicably by conciliation, as provided in Clause 26.2, shall be finally decided by reference in arbitration by a Board of Arbitrators appointed in accordance with Clause 26.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the "Rules"), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration Act. The venue of such arbitration shall be (Delhi), and the language of arbitration proceedings shall be English."-4- CMP No. 35 of 2022
4. The petitioner has invoked the said clause and appointed its nominee arbitrator vide letter dated 28.01.2021 on account of certain disputes between the parties. The respondent not having appointed his nominee arbitrator, the petitioner is before this Court.
5. A perusal of clause 26.3.1, aforesaid extracted, indicates that the arbitration between the parties is required to be held under aegis of the International Centre for Alternative Dispute Resolution (ICADR). That being so, the recognized mechanism of appointment of an arbitrator being the ICADR, this Court would not have jurisdiction. It is for the petitioner to approach ICADR for appointment of necessary arbitrator on behalf of both the petitioner and the respondent.
6. Reserving liberty to the petitioner to approach ICADR, the petition stands disposed of. In the event -5- CMP No. 35 of 2022 of petitioner approaching ICADR, ICADR is directed to appoint arbitrators at the earliest.
Sd/-
JUDGE VM