Dharam Pal Maddar vs Union of India and Another

Hemant Gupta, J.—The present petition is for appointment of an Arbitrator u/s 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ''the Act''), for adjudication of disputes/differences between the parties relating to the contract agreement No.458-ASR of 2003.

The petitioner sought appointment of an Arbitrator on 10.03.2006, vide Annexure A1. A legal notice, Annexure A2, was also served to this effect on 01.06.2006. The petitioner invoked the jurisdiction of 16.09.2006 as the Arbitrator was not appointed. The respondents have appointed an Arbitrator on 15.11.2006 i.e., after the petitioner invoked the jurisdiction of this Court u/s 11 of the Act.

Hon''ble Supreme Court in Datar Switchgears Ltd. Vs. Tata Finance Ltd. and Another, Apex Court Journal 527 (S.C.) : 2000(8) SCC 151 and in Punj Lloyd Ltd. v. Petronet MHB Ltd., 2006(2) SCC 638, has held that the party to the agreement has a right to appoint of an Arbitrator even after expiry of 30 days, but the power to do so is forfeited once the aggrieved party has sought appointment of an Arbitrator u/s 11(6) of the Act. The said judgments have been considered by the Hon''ble Chief Justice in Arbitration Case No.80 of 2006 titled M/s.Bhagwan Dass & Sons v. Union of India and others, decided on 27.02.2009.

Though Clause 64(3)(a)(ii) of the agreement provides that in cases where the total value of claims in question is not covered by clause (i) i.e., where the claim is less than Rs.10 lacs, the Arbitral Tribunal shall consist of a panel of three Railway Gazetted Officers, not below the rank of Junior Administrative Grade. But, keeping in view the fact that the matter has remained pending for a long time and the respondents have failed to act with due diligence, all the disputes between the parties are ordered to be referred for adjudication to the sole arbitration Shri A.K.Sharma, former District Judge, resident of House No.41, Indsor Park, Near DAV, Engineering College, Jalandhar. The Arbitrator shall be free to fix his fee keeping in view the claim amount as also the time that he would require to adjudicate upon the same.

The parties, through their counsel, are directed to appear before the Arbitrator, on 28.05.2009, for further proceedings.