WALTER BAU AG, LEGAL SUCCESSOR, OF THE ORIGIANAL CONTRACTOR vs. MUNICIPAL CORP. OF GREATER MUMBAI

1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION CASE (CIVIL) NO.35 OF 2014 WALTER BAU AG,LEGAL SUCCESSOR, OF THE ORIGINAL CONTRACTOR, DYCKERHOFF & WIDMANN A.G. ...PETITIONER VERSUS MUNICIPAL CORPORATION OF GREATER MUMBAI & ANR. ...RESPONDENTS JUDGMENT th 1. A works contract No.3AAA dated 20 December, 2000 was executed by and between the petitioner and the Municipal Corporation of Greater Mumbai (respondent JUDGMENT No.1 herein) for execution of city tunnel rehabilitation works for the purposes of transporting the city's sewage. Disputes and differences having arisen between the parties under the said contract, the petitioner invoked the arbitration clause Page 1 2 th contained therein and by letter, dated 24 February, 2014, nominated one Shri R.G. Kulkarni as its Arbitrator. By the said communication, the petitioner called upon the respondent No.1 to appoint its Arbitrator within 30 days of the receipt of the aforesaid letter/notice. 2. The arbitration clause in the agreement between the parties would require to be specifically noticed and, therefore, is being extracted herein below: JUDGMENT “Modified Sub-Clause 67.3 Arbitration Sub-clause 67.3 is modified to read as follows: Any dispute, in respect of which the Recommendation(s), if any, of the Board has not become final and binding pursuant to Sub-clause 67.1, shall be finally settled by Page 2 3

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3. A reading of the aforesaid clause of the agreement would go to show that after one of the parties thereto invokes the arbitration clause; appoints its arbitrator and thereafter give notice to the other party to appoint its arbitrator, if the same is not done within 30 days or if the two arbitrators appointed by both JUDGMENT sides fail to nominate a third arbitrator, the matter is to be referred to the International Centre for Alternative Dispute Resolution in India (for short “ICADR”). For appointment of the Arbitrator on behalf of one of the parties Page 7 8 who has failed to so act or for appointment of the third arbitrator, as may be, ICADR is governed by certain norms contained in Rules 5 and 35 of the ICADR Rules, 1996 governing the procedure for appointment of Arbitrators. The same rules may be usefully extracted herein below: 5. Appointment of arbitrators.- (1) Unless otherwise agreed by the parties, a person of any nationality may be an arbitrator. (2) Where the arbitration agreement provides that each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the presiding arbitrator, and-(a) a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or (b) the appointed arbitrators fail to agree on the presiding arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the ICADR. JUDGMENT Page 8 9

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JUDGMENT 4. The respondent Corporation having th failed to respond to the notice dated 24 February, 2014 of the petitioner, an approach was made to the ICADR by the th petitioner on 19 May, 2014. On the basis Page 11 12 rd thereof, the ICADR by its letter dated 3 June, 2014 called upon the respondent Corporation to make appointment of an Arbitrator from a panel of three names that was furnished to the respondent Corporation or to independently appoint an arbitrator. The respondent Corporation pursuant to the said communication of the ICADR appointed Mr. Justice (Retd.) A.D. Mane as its arbitrator by communication rd dated 3 July, 2014. Thereafter, this application/petition under Section 11(6) of the Arbitration and Conciliation Act, JUDGMENT 1996 (for short “the Arbitration Act”) was st filed on 21 August, 2014. 5. Mr. Shamik Sanjanwala, learned counsel appearing for the petitioner has submitted that the arbitration clause in Page 12 13 the agreement read with Rules 5 and 35 of the ICADR Rules embody a procedure that was agreed upon by the parties with regard to appointment of the arbitrator(s). Clearly and evidently, the appointment of Mr. Justice A.D. Mane by the respondent Corporation is contrary to the procedure agreed upon inasmuch as under the relevant Rules governing the ICADR, the said Body was required to communicate the respondent Corporation a panel of three names and it is from the said panel that the respondent Corporation was required to name its JUDGMENT Arbitrator. The Rules do not contemplate an alternative procedure giving the respondent Corporation liberty to appoint an Arbitrator of his choice once the respondent Corporation failed to appoint its arbitrator within the agreed upon Page 13 14 period of thirty days from the receipt of the notice from the petitioner. The appointment of Mr. Justice A.D.Mane as Arbitrator is, therefore, non-est, leaving it open for this Court to exercise its powers under Section 11(6) of the Act to appoint an Arbitrator on behalf of the respondent Corporation. It is also pointed out that the petitioner has a serious basis to question the impartiality and independence of the arbitrator purported to be appointed by the respondent Corporation. JUDGMENT 6. Mr. Mukul Rohatgi, learned Attorney General, appearing for the the respondent Corporation, on the other hand, has submitted that the present petition would not be maintainable inasmuch as an Page 14 15 Arbitrator has already been appointed and any exercise of power under Section 11(6) of the Arbitration Act, at this stage, would operate as an ouster of the said Arbitrator. It is submitted that the remedy of the petitioner, if any, lies elsewhere and under different provisions of the Arbitration Act and not by way of an application under Section 11(6) thereof. Reliance has been placed on the decision of this Court in Antrix Corporation Limited versus Devas Multimedia Private Limited [(2014) 11 SCC JUDGMENT 560] and another recent pronouncement of th this Court dated 16 December, 2014 in Pricol Limited versus Johnson Controls Enterprise Ltd. & Ors. [Arbitration Case (Civil) NO.30 of 2014]. Page 15 16 7. Alternatively, it has been urged by Mr.Rohatgi that as the appointment of Mr. Justice A.D. Mane was made before the present application/petition was filed in this Court, the said appointment would be valid in law. It is submitted that the requirement of appointment within 30 days of receipt of a notice is only in cases covered under Section 11(4) and 11(5) of the Arbitration Act, whereas in cases falling under Section 11(2) read with Section 11(6) of the Arbitration Act, so long the appointment is made before the JUDGMENT concerned aggrieved party moves the Court under Section 11(6), such appointment will not be invalidated. In this regard, reliance has been placed on Datar Switchgears Ltd. Versus Tata Finance Ltd. and another [(2000) 8 SCC 151] and Deep Page 16 17 Trading Company versus Indian Oil Corporation and others [(2013) 4 SCC 35]. 8. While it is correct that in Antrix (supra) and Pricol Limited (supra), it was opined by this Court that after appointment of an Arbitrator is made, the remedy of the aggrieved party is not under Section 11(6) but such remedy lies elsewhere and under different provisions of the Arbitration Act (Sections 12 and 13), the context in which the aforesaid view was expressed cannot be lost sight JUDGMENT of. In Antrix (supra), appointment of the Arbitrator, as per ICC Rules, was as per the alternative procedure agreed upon, whereas in Pricol Limited (supra), the party which had filed the application under Section 11(6) of the Arbitration Act Page 17 18 had already submitted to the jurisdiction of the Arbitrator. In the present case, the situation is otherwise. 9. Unless the appointment of the arbitrator is ex facie valid and such appointment satisfies the Court exercising jurisdiction under Section 11(6) of the Arbitration Act, acceptance of such appointment as a fait accompli to debar the jurisdiction under Section 11(6) cannot be countenanced in law. In the present case, the agreed upon procedure JUDGMENT between the parties contemplated the appointment of the arbitrator by second party within 30 days of receipt of a notice from the first party. While the decision in Datar Switchgears Ltd. (supra) may have introduced some flexibility in Page 18 19 the time frame agreed upon by the parties by extending it till a point of time anterior to the filing of the application under Section 11(6) of the Arbitration Act, it cannot be lost sight of that in the present case the appointment of Shri Justice A.D. Mane is clearly contrary to the provisions of the Rules governing the appointment of Arbitrators by ICADR, which the parties had agreed to abide in the matter of such appointment. The option given to the respondent Corporation to go beyond the panel submitted by the ICADR JUDGMENT and to appoint any person of its choice was clearly not in the contemplation of the parties. If that be so, obviously, the appointment of Shri Justice A.D. Mane is non-est in law. Such an appointment, therefore, will not inhibit the exercise Page 19 20 of jurisdiction by this Court under Section 11(6) of the Arbitration Act. It cannot, therefore, be held that the present proceeding is not maintainable in law. The appointment of Shri Justice A.D. Mane made beyond 30 days of the receipt of notice by the petitioner, though may appear to be in conformity with the law laid down in Datar Switchgears Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The JUDGMENT said appointment, therefore, is clearly invalid in law. 10. Consequently, we allow the present petition and appoint Shri Justice S.R. Sathe, a retired judge of the Bombay High Page 20 21 Court as the Arbitrator on behalf of the respondent Corporation. Both the Arbitrators shall now name the third Arbitrator forthwith whereafter the arbitration proceedings will be held and concluded as expeditiously as possible. The terms of appointment of Shri Justice S.R. Sathe as the Arbitrator on behalf of the respondent Corporation will be settled in consultation with the respondent Corporation. 11. The arbitration petition is JUDGMENT disposed of in the above terms. ....................,J. (RANJAN GOGOI) NEW DELHI JANUARY 20, 2015 Page 21