Document Fragment View

Matching Fragments

"10. Following the reasoning given by this Court in Bernard Ingenieure ZT - GMBH (supra), in my opinion, in the present case also, as the respondent has forwarded only a list of five persons to the petitioner, from which it has called upon the petitioner to choose one Arbitrator as its nominee, the respondent has failed to discharge the obligations that have been cast upon it under the Arbitration Agreement read with Section 12 of the Amended Act and is therefore, deemed to have forfeited its right under the said Agreement."
10. I have considered the submissions made by the counsels for the parties. As noted above, this Court in Larsen & Arb. P. No.627/2018 Page 5 Toubro Ltd. (supra) in similarly situated facts had held that mere forwarding of a list of five persons (in that case) would be a failure of the respondent to discharge its obligations that have been cast upon it under the Arbitration Agreement read with Section 12 of the Amended Act as also the Judgment of the Supreme Court in Voestalpine Schienen(supra).
11. As in spite of the judgment of the Supreme Court in Voestalpine Schienen(supra) and of this Court in Larsen & Toubro Ltd. (supra), the respondent insisted on giving only a limited number of names from its panel of Arbitrators to the petitioner for choosing its nominee Arbitrator, the same clearly amounts to a failure on part of the respondent to act in accordance with the Arbitration Agreement read with Section 12 of the Amended Act.
13. Be that as it may, as the respondent had failed to Arb. P. No.627/2018 Page 6 discharge its obligations in terms of the Arbitration Agreement read with Section 12 of the Act, the appointment of the nominee Arbitrator of the petitioner is confirmed.
14. I appoint Mr.B.K.Makhija, Former Director-Projects, RITES as the nominee Arbitrator for the respondent.
15. The two Arbitrators shall give their disclosure under Section 12 of the Act before proceeding with the reference.