Every person who is of age and of sound mind can be appointed as an arbitrator.: High Court Of New Delhi
The present petition was filed under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking the appointment of sole Arbitrator to adjudicate the dispute against the respondent, and the same issue was held in the judgement passed by a single bench judge comprising HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the BCC DEVELOPERS AND PROMOTERS PVT. LTD V. DELHI METRO RAIL CORPORATION LTD dealt with an issue mentioned above.
According to petitioner, Clause- 17 of the General Conditions of ARB.P. 813/2021 Page 2 of 15 Contract (GCC) forming Agreement dated 23.05.2014 comprises the arbitration agreement between the parties.
Petitioner claims to have participated in tender invited by the respondent for the afore-noted project, which was accepted by the respondent vide its Letter of Acceptance No. DMRC/20/III-132/2013 dated 27.03.2014, which was further accepted by the petitioner vide its letter of intent dated 28.03.2014. Thereafter, petitioner and respondent entered into and executed the Agreement dated 23.05.2014, according to which time for completion of the project was stipulated 12 months, having commenced on 31.12.2014.
Petitioner had to averred that it had sent various letters to respondent ARB.P. 813/2021 regarding intimation of work progress as well as clearance of pending bills, but respondent delayed the payments. Therefore, invoking Clause17 of GCC, the petitioner issued a „notice of dispute‟ vide letter dated 31.05.2021, enclosing a detailed statement of claim detailing the disputes and issues pending between the parties in terms of Clause 17.4 of GCC.
Meanwhile, the learned counsel for the petitioner claimed that because of failure to initiate conciliation proceedings in terms of Clause- 17.5 of GCC by the respondent, petitioner invoked arbitration, as contained in Clause-17.6 read with Clause-17.9 of GCC and also since respondent‟s power to provide the panel of Arbitrators under Clause-17.9 stands disqualified under the provisions of amended Section 12 of Arbitration and Conciliation Act, 1996, the present petition has been filed seeking appointment of sole Arbitrator.
Lastly, it has been submitted on behalf of the petitioner that the disputes inter se parties have to be adjudicated strictly in terms of an arbitration agreement between the parties and the petitioner is entitled to recover a sum of Rs. 17,62,50,063/- plus GST along with interest from the respondent and thus, the present petition be allowed.
The learned counsel of respondent – M/s Delhi Metro Rail Corporation Limited, strongly opposed the claims raised by the petitioner. However, neither existence of Contract Agreement dated 23.05.2014 is disputed nor that in case of any disputes between the parties, the same shall be adjudicated in terms of Clause-17 of GCC. He also fairly conceded that in terms of Clause-17.9, disputes or differences, whatsoever arising between the parties, out of touching or relating to construction/manufacture, measuring operation or effect of the Contract or the breach thereof, shall be referred to arbitration. Later he also placed reliance upon decisions of different Coordinate Benches of this Court dated 13.08.2021 in ARB.P.
Because of the above, the plea urged by the petitioner seeking appointment of sole Arbitrator and disqualification of a panel of proposed/nominated Arbitrators by the respondent being hit by provision of Section12 of the Act is not maintainable.
The court perused the facts and argument’s presented, it thought that- “In the light of aforesaid, the present petition is dismissed while directing the petitioner to appoint its Arbitrator strictly in terms specified in Clause- 17 of the General Conditions of Contract (GCC) forming Agreement dated 23.05.2014. Meaning thereby, the petitioner shall nominate its Arbitrator out of a panel of five Arbitrators proposed by respondent‟s ARB.P. 813/2021 letter dated 20.07.2021 and respondent shall also nominate its Arbitrator therefrom and the two Arbitrators so appointed shall choose the third Arbitrator to complete the Arbitral Tribunal to resolve the disputes between the parties. The present petition is accordingly disposed of”.
Judgment Reviewed by: Mandira BS