Delhi High Court - Orders
Alphatech Projects (India) Private ... vs M/S. Jmd Limited on 13 July, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 21/2020
ALPHATECH PROJECTS (INDIA) PRIVATE
LIMITED ..... Petitioner
Through Mr Sandeep Sharma, Mr Aman Dhyani
and Mr Kanchan Semwal, Advocates
versus
M/S. JMD LIMITED ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 13.07.2021 [Hearing held through videoconferencing]
1. The petitioner has filed the present petition under Section 14 & 15 of the Arbitration and Conciliation Act, 1996 (hereafter 'the A&C Act'), inter alia, praying that the mandate of the Arbitrator unilaterally appointed by the respondent be terminated and an arbitrator be appointed in his place.
2. Concededly, disputes have arisen between the parties and the petitioner had invoked the arbitration clause as included in the Agreement dated 24.03.2011 by a notice dated 22.10.2019.
3. The respondent responded to the said notice by a letter dated 19.11.2019 informing the petitioner that one Sh Harish Chawla has given his Signature Not Verified Digitally Signed By:DUSHYANT RAWAL consent to act a Sole Arbitrator to adjudicate the disputes between the parties. The petitioner disputed the said appointment and by a letter dated 09.09.2019 requested the respondent to appoint its nominee to act as an arbitrator. The petitioner also appointed its nominee as an arbitrator and suggested that both the arbitrators as nominated appoint a presiding arbitrator. In the alternative, the petitioner called upon the respondent to select a sole arbitrator out of a panel of CPWD arbitrators or from the panel of arbitrators as maintained with the High Court.
4. Admittedly, the parties were unable to concur on constitution of the Arbitral Tribunal.
5. In the meanwhile, the learned arbitrator (Harish Chawla) unilaterally appointed by the respondent has attempted to proceed with the arbitration.
6. The relevant extract from the arbitration clause (Clause 52 of the agreement between the parties) reads as under:-
" All matters in dispute between the parties arising out of these presents shall be referred to the arbitration by a mutually appointed arbitrator or a panel of three arbitrators in case the parties agree upon the same; but in default of such agreement, the reference shall be made to the arbitration of two arbitrators, one to be appointed by each party and the two appointed arbitrators shall appoint the third arbitrator, who shall act as the presiding arbitrator. If one party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made upon request of a party by the Chief Justice of High Court or any person or registered Society or institution designated by him. The arbitrator{s) or the Presiding Arbitrator shall be the Signature Not Verified Digitally Signed By:DUSHYANT RAWAL fellow of Institution of Engineers (India) or Institution of Architects (India). The award of the Arbitrator(s) as the case may be, shall be final and binding upon the parties. The provisions of the Arbitration and Conciliation Act, 1996 and all-statutory modifications thereof for the time being in force shall apply to all such arbitration, which shall be held in New Delhi."
7. It is apparent from a plain reading of the arbitration clause that it did not contemplate a unilateral appointment of the Sole Arbitrator by any party.
8. It is conceded by the learned counsel for the respondent that the unilateral appointment of an arbitrator also falls foul of the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited: 2019 SCC OnLine 1517.
9. The learned counsel appearing for the parties state that they have no objection if an independent arbitrator is appointed by this Court in these proceedings.
10. In view of the above, the present petition is allowed and the mandate of the learned arbitrator unilaterally appointed by the respondent is terminated. With the consent of the parties this Court proposes to appoint Justice Nandrajog, a former Chief Justice of the Rajasthan High Court and the Bombay High Court is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
11. The parties are at liberty to approach the learned Arbitrator for eliciting his consent and the necessary disclosure under Section 12(1) of the A&C Act.
12. Let the same be furnished to this Court before the next date of Signature Not Verified Digitally Signed By:DUSHYANT RAWAL hearing.
13. List on 22.07.2021.
VIBHU BAKHRU, J JULY 13, 2021 pkv Signature Not Verified Digitally Signed By:DUSHYANT RAWAL