Sole Arbitrator Cannot Be Appointed Solely By One Party: High Court Of New Delhi

Petitioner has filed the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996, and the same issue was held in the judgement passed by a single bench judge HON’BLE MR. JUSTICE SURESH KUMAR KAIT, in the matter  M/S ASHUTOSH BUILDERS CONTRACTORS AND ENGINEERS V. UNION OF INDIA & ORS. dealt with an issue mentioned above.

Petitioner was a contractor who was engaged by the respondent on several occasions for carrying out various constructions and other activities of the respondent, were as the Petitioner seeks the appointment of a sole arbitrator for adjudication of all the disputes with respondents in terms of arbitration clause 70 of IAFW 2249.

Respondent was an establishment fully controlled and supervised by the Ministry of Defence, which was stated under Union of India and also it was stated under ARB.P. 900/2021  Article 12 of the Constitution of India.

In this case, Respondent No.1 was the Engineer in Chief (E-IN-C) of the Wing of Army were like the others Respondent Nos.2, 3 & 4 are subordinate offices to respondent No.1.

Accordingly, Petitioner was awarded the acceptance letter of the contract agreement vide letter dated 28.06.2019 for the work “CA NO.CWE/WEST-02/2019- 20; SPL REPAIR OF ROMNEY HUTS T-156, T-165, T-166, T-167, T-168 AND T-169 OF CENTRAL STORAGE FACILITY AT CVD UNDER GE (WEST)DELHI CANTT.-10″ to the tune of Rs.31,19,233/-.

Thereafter, respondent No.4 issued a work order dated 02.07.2019 to the petitioner wherein the date of commencement was mentioned as 12.07.2019 and the date of completion was mentioned as 11.01.2020. So Subsequently, again petitioner sent a letter on 05.12.2019 and stated that Hon’ble Supreme Court vide order dated 04.11.2019 has enforced the ban upon the construction activities carried in Delhi. He also stated that the ARB.P. 900/2021 work could only be started after the ban is uplifted and requests for extension of time. Later In response to the abovementioned letter, respondent no.4 vide letter dated 20.12.2019 stated that the Hon’ble Supreme Court has given relaxation in time for construction activities from 09.12.2019.

Meanwhile, the petitioner sent a letter to respondent no.5 as well as TATA Steel (manufacturer) along with a letter of respondent no.4 to replace the material as rust can be seen on the CGI sheet.

The learned counsel for the petitioner informed that the petitioner firm had previously sent notice for conciliation and thereafter sent a notice invoking arbitration vide notice dated 17.07.2021 under condition 70 of IAFW and requested for the appointment of a sole arbitrator to adjudicate the disputes between the parties.

Respondents filed a reply to the present petition wherein it was already been stated that as per the Agreement the serving officer having requisite ARB.P. 900/2021 qualification has to be appointed as an arbitrator to adjudicate the disputes solely by the appointing authority.

However, the Hon’ble Supreme Court referred, Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. 2019 SCC Online SC 1517 which could help to give an accurate judgment for the present case. During this particular time, learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties.

The court perused the facts and argument’s presented, it thought that- “The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration. The present petition is accordingly disposed of. The pending application also stands disposed of”.

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Judgment Reviewed By: Mandira BS

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