Full Judgment Text
$~A-5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27.01.2020
+ ARB.P. 574/2019
PAVE INFRASTRUCTURE PVT. LTD. ..... Petitioner
Through Mr. Sachin Datta, Sr. Advocate with
Mr. Jayant Kumar, Advocate.
versus
WAPCOS LTD. ..... Respondent
Through Mr. Kapil Gupta, Advocate.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
1. This is a petition under Section 11(6) of the Arbitration and
Conciliation Act, 1996 (‘Act’) for appointment of a Sole Arbitrator.
2. The parties entered into an agreement dated 25.04.2017 for
construction of boundary wall, toilet and providing access to disabled
persons in the Centrally Protected Monuments under ASI-Jodhpur Circle,
Rajasthan. The said agreement contains an Arbitration Clause, which reads
as under:-
“Clause 5.30.2:-
Save as expressely stated to the contrary in the Contract,
any Dispute shall be finally settled by binding arbitration
under the Arbitration and Conciliation Act, 1996 by sole
arbitrators appointed by CMD, WAPCOAS”
3. Learned counsel for the respondent contends that the present petition
is not maintainable. First contention of the respondent is that the procedure
ARB.P. 574/2019 Page 1 of 4
envisaged in the Arbitration Clause was not followed inasmuch as the
negotiation and good faith talks were still going on when the Arbitration was
invoked. Second contention is that after the judgment of the Supreme Court
in Perkins Eastman Architect DPC & Anr. Vs. HSCC (India) Ltd 2019
SCC OnLine SC 1517 respondent has now initiated the process of finalizing
a panel of Arbitrators and the order in the present petition be deferred to
enable the respondent to furnish a panel to the petitioner, from which it can
appoint an Arbitrator.
4. It is further contended that there is no Arbitral Dispute existing
between the parties.
5. In so far as the contention of the respondent that the negotiation in
good faith talks are still on between the parties, is concerned, learned counsel
for the petitioner has rightly pointed out that it had approached the
respondent for amicable settlement and had even written a letter dated
31.05.2019 for resolving the disputes. The petitioner had also nominated
Mr. Bhattacharjee, the AGM of the company as a Representative to settle the
matter, but the talks have failed and the respondent is no longer interested in
resolving the matter.
6. Learned counsel for the petitioner is right in its contention that in view
of the judgment of the Supreme Court in Perkins Eastman Architects DPC
& Anr.(supra) , the CMD, WAPCOS has now lost the right to make a
unilateral appointment of the Sole Arbitrator as undoubtedly, the CMD
would be interested in the outcome of the arbitration proceedings. Thus, the
respondent cannot be permitted to exercise the right of appointment
unilaterally, through its CMD. This Court also has recently in the case of
Proddatur Cable TV Digi Services vs. SITI Cable Network Limitedv being
ARB.P. 574/2019 Page 2 of 4
OMP (T) (COMM) 109/2019, decided on 20.01.2020 has, relying on
Perkins Eastman Architects DPC & Anr. (supra) , set aside the unilateral
appointment by the respondent Company through its Board of Directors.
7. In so far as the question of the disputes being Arbitral disputes or not,
is concerned, in a recent judgment in Mayavti Trading Pvt.Ltd. Vs.
Pradyuat Deb Burman 2019 SCC OnLine SC 1164 the Supreme Court has
clearly held that the mandate of the High court in examining a petition under
Section 11(6) of the Act will be confined to examination of the existence and
validity of the Arbitration Agreement.
8. Relevant para of the judgment is extracted hereinunder:-
“10) This being the position, it is clear that the law
prior to the 2015 Amendment that has been laid down by
this Court, which would have included going into whether
accord and satisfaction has taken place, has now been
legislatively overruled. This being the position, it is difficult
to agree with the reasoning contained in the aforesaid
judgment as Section 11(6A) is confined to the examination
of the existence of an arbitration agreement and is to be
understood in the narrow sense as has been laid down in the
judgment Duro Felguera, S.A. (Supra) – see paras 48 & 59.
11) We, therefore, overrule the judgment in United
India Insurance Company Limited (supra) as not having
laid down the correct law but dismiss this appeal for the
reason given in para 3 above.”
Thus in my view the present peititon deserves to be
allowed.”
9. Thus, in the present petition, the issue of arbitrability of a dispute
cannot be examined by this Court. Liberty is, however, given to the
respondent to raise the question of the disputes being Arbitral or otherwise,
before the Arbitral Tribunal.
ARB.P. 574/2019 Page 3 of 4
10. The argument of the respondent that they are in process of preparing
the panel, only deserves to be rejected. There is admittedly no panel at
present and thus the right to the petitioner to seek an appointment today
cannot be defeated only for the reason that a panel is proposed to be prepared
in future.
11. Dr. Justice A.K. Sikri, former Judge of Supreme Court is thus
appointed as the Sole Arbitrator to adjudicate the disputes between the
parties.
12. The address and mobile number of the learned Arbitrator is as under:
Dr. Justice A.K. Sikri,
Former Judge, Supreme Court of India,
st
144, 1 Floor, Sunder Nagar,
New Delhi-110003
Mobile:9818000300.
13. The learned Arbitrator shall give disclosure under Section 12 of the
Act before entering upon reference.
14. Fee of the Arbitrator shall be fixed as per Fourth Schedule of the Act.
15. The petition is allowed in the aforesaid terms.
JYOTI SINGH, J
JANUARY 27, 2020
yo/
ARB.P. 574/2019 Page 4 of 4