Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment reserved on : 9 March, 2016
th
% Judgment pronounced on: 15 March, 2016
+ O.M.P. (T) (COMM) No. 11/2016
GAIL (INDIA) PRIVATE LTD. ...... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
versus
SRAVANTHI ENERGY PRIVATE LTD. ..... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
+ O.M.P. (T) (COMM) No. 12/2016
GAIL (INDIA) LTD. ..... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
versus
GAMA INFRAPROP PRIVATE LTD. ....... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
+ O.M.P. (T) (COMM) No. 14/2016
GAIL (INDIA) LTD. ..... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 1 of 9
versus
BETA INFRATECH PRIVATE LTD. ....... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The petitioner has filed the abovementioned petitions under Section
15(1) read with 15 (2) of the Arbitration and Conciliation Act, 1996 for
appointment of a substitute sole arbitrator.
2. Brief facts as per the petitions are that the petitioner is a Public Sector
undertaking engaged in the business of supply, marketing and distribution of
Gas in India. The respondent is a company incorporated under the
Companies Act, 1956 and is engaged in the field of infrastructure
development in India.
3. In the year 2010, the respondents intended to set-up a 225 MW Gas-
based Power Plant at Kashipur in the State of Utrakhand at an estimated cost
of more than 850 crore, pursuant to which the respondents entered into three
separate Gas Transmission Agreements (hereinafter referred to as 'GTA')
th th th
with the petitioner on 11 November, 2010, 18 November, 2010 and 19
October, 2010 respectively whereby the petitioner were required to provide
Gujarat to
the required infrastructure for transmission of gas from a point in
the respondents’ delivery point at Kashipur on Uttrakhand Industrial Park,
Mohua Khera Ganj in Kashipur. Some disputes arose between the parties in
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 2 of 9
st
respect of certain invoices raised from time to time by the petitioner since 21
October, 2014.
4. Clause 16 of the said agreement provides for arbitration clause which
reads as follows:
CLAUSE 16- DISPUTE RESOLUTION
“16.1 .....
16.2 Referral for Settlement: (applicable to shippers other than
central public sector enterprises)
i. In the event of failure of a settlement under Clause 16.1
of any such Dispute, the Dispute shall be referred to and finally
resolved by arbitration under the Indian Arbitration and
Conciliation Act, 1996 (Act 1996) in force at the time such
arbitration is commenced.
ii. If a Dispute is to be settled by arbitration pursuant to
clause 16.2 i, then an arbitral tribunal (the "Tribunal") shall be
established in accordance with the provisions of this Clause
16.2 ii. The number of arbitrators shall be 3 (three). Each party
shall nominate an arbitrator within 30 (thirty) Days of the date
of a request for arbitration, and the two nominated arbitrators
shall with 30(thirty) days of the date of the nomination of the
second arbitrator jointly nominate a third arbitrator to act as
Chairman of the Tribunal.”
th
5. The petitioner issued a notice dated 5 May, 2015 to the respondents
notifying its nomination of retired Chief Justice of India of the Supreme
Court, as an Arbitrator on behalf of the petitioner and requested the
respondents to appoint/nominate its Arbitrator to the Arbitral panel. The
aforesaid letter was duly served on the respondents and a reply letter dated
th
7 May, 2015 was sent by the respondents to the petitioner. In the said reply,
the respondents stated that it was not agreeable to the Arbitration
Proceedings initiated between the parties as there has been no mutual
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 3 of 9
consent by the parties for appointment of any Arbitrator. Consequently, the
th
petitioner in OMP(T)(Comm) No.11/ 2016, on 26 May, 2015 filed an
arbitration petition bearing No. 359/2015 before this Court, together with
two other similar petitions being petition Nos.351/2015 and 360/2015
against two other separate third parties, which involved adjudication of
identical contractual disputes on similar factual matrix.
rd
6. By order dated 23 December, 2015, this Court in Arb.P Nos.
351/2015, 359/2015 and 360/2015 appointed sole Arbitrator i.e. Hon’ble
retired Judge of Supreme Court to adjudicate upon all three identical
contractual disputes between the parties. The extract of the said order read as
under:-
“1. The petitioner is seeking appointment of an arbitrator under
Section 11(6) of the Arbitration and Conciliation Act, 1996.
2. Learned senior counsel for the petitioner submitted that the
parties entered into three Gas Transmission Agreements dated
19th October, 2010 in Arb. P. 351/2015, 11th November, 2010 in
Arb. P. 359/2015 and 18th November, 2010 in Arb. P. 360/2015.
There is a valid arbitration agreement between the parties
contained in clause 16 of the aforesaid agreements. The disputes
have arisen between the parties whereupon the petitioner invoked
the arbitration vide letters dated 05th May, 2015.
3. Learned counsel for the respondent did not dispute the existence
of valid arbitration agreements and disputes between the parties.
Learned counsel for the respondent however opposed the petition
on the ground that the respondent has made a complaint against
the petitioner before the Petroleum and Natural Gas Regulatory
Board for indulging in a restrictive trade practice. It was
submitted that the said complaint is pending before the Petroleum
and Natural Gas Regulatory Board and, therefore, the petitions
for appointment of arbitrator are not maintainable.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 4 of 9
4. Learned senior counsel for the petitioner submitted that the
complaint filed by the respondent before the Petroleum and
Natural Gas Regulatory Board would not in any manner bar the
arbitration proceedings being invoked by the petitioner under the
valid arbitration agreements between theparties. It is further
submitted that the Petroleum and Natural Gas Regulatory
Board’s jurisdiction to adjudicate the disputes agreed to be
resolved by arbitration is specifically excluded by Section
12(1)(a) of the Act which is reproduced hereunder:-
“Section 12-Powers regarding complaints and resolution
of disputes by the Board:
The Board shall have jurisdiction to-
(a) adjudicate upon and decide any dispute or matter
arising amongst entities or between an entity and any
other person on issues relating to refining, processing,
storage, transportation, distribution, marketing and sale of
petroleum, petroleum products and natural gas according
to the provisions of Chapter V, unless the parties have
agreed for arbitration”. (Emphasis supplied)
5. Learned senior counsel for the petitioner further submitted that
the petitioner invoked Section 9 of the Arbitration and
Conciliation Act by filing O.M.P. No. 1385/2014, 1386/2014 &
1387/2014 before this Court for seeking injunction against the
petitioner from invoking bank guarantee and security deposit till
the issue of termination of agreements was settled through
arbitration in which vide orders dated 10th November, 2014, this
Court directed the parties to take recourse to amicable settlement
as contemplated in clause 16.1 of the Gas Transmission
Agreement. It was submitted that having invoked Section 9 of the
Arbitration and Conciliation Act, the respondent is estopped from
opposing this petition for appointment for arbitrator.
6. Learned senior counsel for petitioner further submitted that a sole
arbitrator be appointed by this Court to adjudicate the disputes
between the parties. Learned senior counsel for the petitioner
submitted that arbitration proceedings in similar matters are
pending.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 5 of 9
7. This Court is satisfied that there is a valid arbitration agreement
between the parties contained in clause 16.2 of the Gas
Transmission agreements dated 19th October, 2010, 11th
November, 2010 and 18th November, 2010. Disputes have
arisen between the parties whereupon the petitioner validly
invoked the arbitration agreement.
8. There is no merit in the respondent’s objection to the
maintainability of this petition. The pendency of the complaint
filed by the respondent before Petroleum and Natural Gas
Regulatory Board would not bar the jurisdiction of the arbitral
tribunal to adjudicate the disputes between the parties. The
Petroleum and Natural Gas Regulatory Board is dealing with the
complaint of the respondent. The petitioner has admittedly not
raised its claims against the respondent before Petroleum and
Natural Gas Regulatory Board. The Petroleum and Natural Gas
Regulatory Board is not dealing with the claims raised by the
petitioner in this petition and therefore, the petitioner would not
get any relief with respect to its claims. The petitioner’s legal
remedy to agitate the claims against the respondent is within the
exclusive jurisdiction of the arbitral tribunal by invoking the
arbitration agreement between the parties.
8. The respondent itself took recourse of Section 9 of the
Arbitration and Conciliation Act in O.M.P. No. 1385/2014,
1386/2014 & 1387/2014 and sought interim relief till the
conclusion of the arbitration. Having invoked Section 9 of the
Arbitration and Conciliation Act, the respondent cannot object to
the arbitration proceedings.
9. The petitions are allowed and Justice R.V. Raveendran (Retd.) is
appointed as the sole arbitrator to adjudicate the disputes between
the parties including their claims and counter claims. The learned
arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation Act (Amendment) Ordinance, 2015
before commencing the arbitration.
10. Copy of this judgment be given dasti to counsels for the parties
under signature of Court Master. Copy of this judgment be sent
to the learned arbitrator.”
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 6 of 9
th
7. The learned sole Arbitrator vide letter dated 17 January, 2016
addressed to the parties, had indicated his inability to devote sufficient time
to the arbitration and in particular his inability to finish the entire arbitration
within twenty four months.
th
8. The petitioner thereafter on 29 January, 2016 filed an application
under Section 13 (2) of the Act, requesting the Tribunal to withdraw its
consent to preside over the dispute in order for claimant to seek appointment
of a substitute Arbitrator.
9. The sole Arbitrator had issued his consent to withdraw from the office
th
of the Arbitrator vide letter dated 30 January, 2016, and requested the
petitioner to inform the Court accordingly. A copy of the same has been
placed on record.
10. In view of the aforesaid reasons, the petitioner has filed the present
petition to substitute sole Arbitrator under Section 15 (2) of the Act, to
adjudicate the disputes from amongst the named panel members.
11. The petitioner is a Public Sector Undertaking and has already
obtained consent from a panel of eminent Arbitrators to preside over such
disputes for nominal lump sum fees. The details of the members of the said
panel are mentioned in para 14 of the petitions.
12. Learned counsel for the respondents has opposed the prayer mainly on
two grounds. Firstly, the original procedure as per the Arbritation Clause
would revive once the sole Arbitrator has shown his inability to complete
the proceedings. Secondly, he submitted, that under the new amendment in
the Arbitration Act, the suggestion of nominee Arbitrator by any of the
parties should not be considered, although he has the highest regard for each
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 7 of 9
member of the panel. He submits that once the sole Arbitrator has
withdrawn from the arbitration proceedings, the prayer for appointment of a
substitute Arbitrator under Section 15 of the Act be confined to only as
provided under the Arbitration Agreement. The petitioner, under these
circumstances, lost its right to suggest any name for the purpose of sole
Arbitrator.
13. As far as the first objection is concerned, counsel for the respondents
has not denied the fact that when the sole Arbitrator was substituted by order
rd
dated 23 December, 2015, the said order was not challenged by the
respondents. With regard to the second objection, I agree with the
submissions of the learned counsel for the respondents that the petitioner
should suggest the name of substitute Arbitrator, however, I do not agree
with the submission of the learned counsel for the respondents that after the
withdrawal by the sole Arbitrator, the fresh procedure as per agreement to be
followed, once after hearing of the parties, sole Arbitrator was appointed by
the learned Predecessor Bench. However, the submissions of the learned
counsel for the respondents is that this Court should not appoint sole
Arbitrator from the list of panel arbitrator(s) as per the scheme mentioned in
the petitions though he has highest respect for each member who are very
able and competent names.
14. In order to avoid controversy, by allowing the prayers in the petitions,
except this Court appoints Mr. K.S.P. Radhakrishnan (Retired Judge of the
Supreme Court, R/o 87 Anand Lok, Second Floor, New Delhi, Mob.
9560013636) as substitute sole Arbitrator to adjudicate the disputes arising
out of the agreement in question between the parties as mentioned in the
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 8 of 9
present petitions. The parties are also allowed to file their respective claims
and counter-claims before the Arbitrator.
15. The Arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation (Amendment) Act, 2015 before commencing
the arbitration. The fees of the learned Arbitrator shall be in terms of the
schedule of Arbitration and Conciliation (Amendment) Act, 2015.
16. The petitions are accordingly disposed of. No costs.
17. Copy of this order be given dasti to the learned counsel for the parties
and a copy thereof be communicated to the learned sole Arbitrator forthwith.
(MANMOHAN SINGH)
JUDGE
MARCH 15, 2016
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 9 of 9
th
Judgment reserved on : 9 March, 2016
th
% Judgment pronounced on: 15 March, 2016
+ O.M.P. (T) (COMM) No. 11/2016
GAIL (INDIA) PRIVATE LTD. ...... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
versus
SRAVANTHI ENERGY PRIVATE LTD. ..... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
+ O.M.P. (T) (COMM) No. 12/2016
GAIL (INDIA) LTD. ..... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
versus
GAMA INFRAPROP PRIVATE LTD. ....... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
+ O.M.P. (T) (COMM) No. 14/2016
GAIL (INDIA) LTD. ..... Petitioner
Through Mr.Balbir Singh, Sr. Adv. with
Mr.Ravi Shankar & Mr.Angad
Sandhu, Advs.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 1 of 9
versus
BETA INFRATECH PRIVATE LTD. ....... Respondent
Through Mr.Piyush Joshi, Adv. with Ms.Uttara
Babbar & Ms.Akanksha Choudhary,
Advs.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The petitioner has filed the abovementioned petitions under Section
15(1) read with 15 (2) of the Arbitration and Conciliation Act, 1996 for
appointment of a substitute sole arbitrator.
2. Brief facts as per the petitions are that the petitioner is a Public Sector
undertaking engaged in the business of supply, marketing and distribution of
Gas in India. The respondent is a company incorporated under the
Companies Act, 1956 and is engaged in the field of infrastructure
development in India.
3. In the year 2010, the respondents intended to set-up a 225 MW Gas-
based Power Plant at Kashipur in the State of Utrakhand at an estimated cost
of more than 850 crore, pursuant to which the respondents entered into three
separate Gas Transmission Agreements (hereinafter referred to as 'GTA')
th th th
with the petitioner on 11 November, 2010, 18 November, 2010 and 19
October, 2010 respectively whereby the petitioner were required to provide
Gujarat to
the required infrastructure for transmission of gas from a point in
the respondents’ delivery point at Kashipur on Uttrakhand Industrial Park,
Mohua Khera Ganj in Kashipur. Some disputes arose between the parties in
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 2 of 9
st
respect of certain invoices raised from time to time by the petitioner since 21
October, 2014.
4. Clause 16 of the said agreement provides for arbitration clause which
reads as follows:
CLAUSE 16- DISPUTE RESOLUTION
“16.1 .....
16.2 Referral for Settlement: (applicable to shippers other than
central public sector enterprises)
i. In the event of failure of a settlement under Clause 16.1
of any such Dispute, the Dispute shall be referred to and finally
resolved by arbitration under the Indian Arbitration and
Conciliation Act, 1996 (Act 1996) in force at the time such
arbitration is commenced.
ii. If a Dispute is to be settled by arbitration pursuant to
clause 16.2 i, then an arbitral tribunal (the "Tribunal") shall be
established in accordance with the provisions of this Clause
16.2 ii. The number of arbitrators shall be 3 (three). Each party
shall nominate an arbitrator within 30 (thirty) Days of the date
of a request for arbitration, and the two nominated arbitrators
shall with 30(thirty) days of the date of the nomination of the
second arbitrator jointly nominate a third arbitrator to act as
Chairman of the Tribunal.”
th
5. The petitioner issued a notice dated 5 May, 2015 to the respondents
notifying its nomination of retired Chief Justice of India of the Supreme
Court, as an Arbitrator on behalf of the petitioner and requested the
respondents to appoint/nominate its Arbitrator to the Arbitral panel. The
aforesaid letter was duly served on the respondents and a reply letter dated
th
7 May, 2015 was sent by the respondents to the petitioner. In the said reply,
the respondents stated that it was not agreeable to the Arbitration
Proceedings initiated between the parties as there has been no mutual
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 3 of 9
consent by the parties for appointment of any Arbitrator. Consequently, the
th
petitioner in OMP(T)(Comm) No.11/ 2016, on 26 May, 2015 filed an
arbitration petition bearing No. 359/2015 before this Court, together with
two other similar petitions being petition Nos.351/2015 and 360/2015
against two other separate third parties, which involved adjudication of
identical contractual disputes on similar factual matrix.
rd
6. By order dated 23 December, 2015, this Court in Arb.P Nos.
351/2015, 359/2015 and 360/2015 appointed sole Arbitrator i.e. Hon’ble
retired Judge of Supreme Court to adjudicate upon all three identical
contractual disputes between the parties. The extract of the said order read as
under:-
“1. The petitioner is seeking appointment of an arbitrator under
Section 11(6) of the Arbitration and Conciliation Act, 1996.
2. Learned senior counsel for the petitioner submitted that the
parties entered into three Gas Transmission Agreements dated
19th October, 2010 in Arb. P. 351/2015, 11th November, 2010 in
Arb. P. 359/2015 and 18th November, 2010 in Arb. P. 360/2015.
There is a valid arbitration agreement between the parties
contained in clause 16 of the aforesaid agreements. The disputes
have arisen between the parties whereupon the petitioner invoked
the arbitration vide letters dated 05th May, 2015.
3. Learned counsel for the respondent did not dispute the existence
of valid arbitration agreements and disputes between the parties.
Learned counsel for the respondent however opposed the petition
on the ground that the respondent has made a complaint against
the petitioner before the Petroleum and Natural Gas Regulatory
Board for indulging in a restrictive trade practice. It was
submitted that the said complaint is pending before the Petroleum
and Natural Gas Regulatory Board and, therefore, the petitions
for appointment of arbitrator are not maintainable.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 4 of 9
4. Learned senior counsel for the petitioner submitted that the
complaint filed by the respondent before the Petroleum and
Natural Gas Regulatory Board would not in any manner bar the
arbitration proceedings being invoked by the petitioner under the
valid arbitration agreements between theparties. It is further
submitted that the Petroleum and Natural Gas Regulatory
Board’s jurisdiction to adjudicate the disputes agreed to be
resolved by arbitration is specifically excluded by Section
12(1)(a) of the Act which is reproduced hereunder:-
“Section 12-Powers regarding complaints and resolution
of disputes by the Board:
The Board shall have jurisdiction to-
(a) adjudicate upon and decide any dispute or matter
arising amongst entities or between an entity and any
other person on issues relating to refining, processing,
storage, transportation, distribution, marketing and sale of
petroleum, petroleum products and natural gas according
to the provisions of Chapter V, unless the parties have
agreed for arbitration”. (Emphasis supplied)
5. Learned senior counsel for the petitioner further submitted that
the petitioner invoked Section 9 of the Arbitration and
Conciliation Act by filing O.M.P. No. 1385/2014, 1386/2014 &
1387/2014 before this Court for seeking injunction against the
petitioner from invoking bank guarantee and security deposit till
the issue of termination of agreements was settled through
arbitration in which vide orders dated 10th November, 2014, this
Court directed the parties to take recourse to amicable settlement
as contemplated in clause 16.1 of the Gas Transmission
Agreement. It was submitted that having invoked Section 9 of the
Arbitration and Conciliation Act, the respondent is estopped from
opposing this petition for appointment for arbitrator.
6. Learned senior counsel for petitioner further submitted that a sole
arbitrator be appointed by this Court to adjudicate the disputes
between the parties. Learned senior counsel for the petitioner
submitted that arbitration proceedings in similar matters are
pending.
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 5 of 9
7. This Court is satisfied that there is a valid arbitration agreement
between the parties contained in clause 16.2 of the Gas
Transmission agreements dated 19th October, 2010, 11th
November, 2010 and 18th November, 2010. Disputes have
arisen between the parties whereupon the petitioner validly
invoked the arbitration agreement.
8. There is no merit in the respondent’s objection to the
maintainability of this petition. The pendency of the complaint
filed by the respondent before Petroleum and Natural Gas
Regulatory Board would not bar the jurisdiction of the arbitral
tribunal to adjudicate the disputes between the parties. The
Petroleum and Natural Gas Regulatory Board is dealing with the
complaint of the respondent. The petitioner has admittedly not
raised its claims against the respondent before Petroleum and
Natural Gas Regulatory Board. The Petroleum and Natural Gas
Regulatory Board is not dealing with the claims raised by the
petitioner in this petition and therefore, the petitioner would not
get any relief with respect to its claims. The petitioner’s legal
remedy to agitate the claims against the respondent is within the
exclusive jurisdiction of the arbitral tribunal by invoking the
arbitration agreement between the parties.
8. The respondent itself took recourse of Section 9 of the
Arbitration and Conciliation Act in O.M.P. No. 1385/2014,
1386/2014 & 1387/2014 and sought interim relief till the
conclusion of the arbitration. Having invoked Section 9 of the
Arbitration and Conciliation Act, the respondent cannot object to
the arbitration proceedings.
9. The petitions are allowed and Justice R.V. Raveendran (Retd.) is
appointed as the sole arbitrator to adjudicate the disputes between
the parties including their claims and counter claims. The learned
arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation Act (Amendment) Ordinance, 2015
before commencing the arbitration.
10. Copy of this judgment be given dasti to counsels for the parties
under signature of Court Master. Copy of this judgment be sent
to the learned arbitrator.”
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 6 of 9
th
7. The learned sole Arbitrator vide letter dated 17 January, 2016
addressed to the parties, had indicated his inability to devote sufficient time
to the arbitration and in particular his inability to finish the entire arbitration
within twenty four months.
th
8. The petitioner thereafter on 29 January, 2016 filed an application
under Section 13 (2) of the Act, requesting the Tribunal to withdraw its
consent to preside over the dispute in order for claimant to seek appointment
of a substitute Arbitrator.
9. The sole Arbitrator had issued his consent to withdraw from the office
th
of the Arbitrator vide letter dated 30 January, 2016, and requested the
petitioner to inform the Court accordingly. A copy of the same has been
placed on record.
10. In view of the aforesaid reasons, the petitioner has filed the present
petition to substitute sole Arbitrator under Section 15 (2) of the Act, to
adjudicate the disputes from amongst the named panel members.
11. The petitioner is a Public Sector Undertaking and has already
obtained consent from a panel of eminent Arbitrators to preside over such
disputes for nominal lump sum fees. The details of the members of the said
panel are mentioned in para 14 of the petitions.
12. Learned counsel for the respondents has opposed the prayer mainly on
two grounds. Firstly, the original procedure as per the Arbritation Clause
would revive once the sole Arbitrator has shown his inability to complete
the proceedings. Secondly, he submitted, that under the new amendment in
the Arbitration Act, the suggestion of nominee Arbitrator by any of the
parties should not be considered, although he has the highest regard for each
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 7 of 9
member of the panel. He submits that once the sole Arbitrator has
withdrawn from the arbitration proceedings, the prayer for appointment of a
substitute Arbitrator under Section 15 of the Act be confined to only as
provided under the Arbitration Agreement. The petitioner, under these
circumstances, lost its right to suggest any name for the purpose of sole
Arbitrator.
13. As far as the first objection is concerned, counsel for the respondents
has not denied the fact that when the sole Arbitrator was substituted by order
rd
dated 23 December, 2015, the said order was not challenged by the
respondents. With regard to the second objection, I agree with the
submissions of the learned counsel for the respondents that the petitioner
should suggest the name of substitute Arbitrator, however, I do not agree
with the submission of the learned counsel for the respondents that after the
withdrawal by the sole Arbitrator, the fresh procedure as per agreement to be
followed, once after hearing of the parties, sole Arbitrator was appointed by
the learned Predecessor Bench. However, the submissions of the learned
counsel for the respondents is that this Court should not appoint sole
Arbitrator from the list of panel arbitrator(s) as per the scheme mentioned in
the petitions though he has highest respect for each member who are very
able and competent names.
14. In order to avoid controversy, by allowing the prayers in the petitions,
except this Court appoints Mr. K.S.P. Radhakrishnan (Retired Judge of the
Supreme Court, R/o 87 Anand Lok, Second Floor, New Delhi, Mob.
9560013636) as substitute sole Arbitrator to adjudicate the disputes arising
out of the agreement in question between the parties as mentioned in the
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 8 of 9
present petitions. The parties are also allowed to file their respective claims
and counter-claims before the Arbitrator.
15. The Arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation (Amendment) Act, 2015 before commencing
the arbitration. The fees of the learned Arbitrator shall be in terms of the
schedule of Arbitration and Conciliation (Amendment) Act, 2015.
16. The petitions are accordingly disposed of. No costs.
17. Copy of this order be given dasti to the learned counsel for the parties
and a copy thereof be communicated to the learned sole Arbitrator forthwith.
(MANMOHAN SINGH)
JUDGE
MARCH 15, 2016
OMP(T) (COMM) Nos.11,12 & 14/2016 Page 9 of 9