M/S Ashutosh Enterprises vs Indian Trade Promotion Organization

C. Hari Shankar, J

Clause 8 of the contract between the parties, which provides for dispute resolution, reads thus:

“8. Dispute Resolution

The Parties shall attempt in good faith to resolve any disputes or claims arising out of or in relation to this Agreement (“Differenceâ€) promptly by

negotiation between the Parties. In the event that the Parties fail to settle/resolve the disputes amicably within 30 days, then the same shall be referred

to and settled by a sole Arbitrator to be appointed by CMD, ITPO. The Arbitration proceedings shall be conducted at New Delhi, Indian in English

Language in accordance with the Indian Laws (both Substantive and Procedural) under the Arbitration & Conciliation Act, 1996 as amended and re-

enacted from time to time. The arbitration award shall be final and binding on the Parties.â€​

It is apparent that Clause 8 is in the teeth of Section 12(5) of the Arbitration and Conciliation Act, 1996, read with the Seventh Schedule thereto and

the judgment of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd. 2019 SCC Online SC 1517, Bharat Broadband

Network Ltd. v. United Telecom Ltd (2019) 5 SCC 755 and TRF Limited v. Energo Engineering Projects Ltd. (2017) 8 SCC 377.

Accordingly, the letter dated 15th February, 2021, by the CMD of respondent-Indian Trade Promotion Organization, appointing the arbitrator is

obviously not enforceable.

In view thereof, Mr. Rajender Wali, learned counsel for the respondent, fairly agrees to the appointment of an arbitrator by the court, but requests

that the arbitrator may be someone other than the arbitrators suggested in the notice invoking arbitration issued by the petitioner.

Accordingly, in view thereof, this Court appoints Mr G. Tushar Rao, Advocate (Mobile No: 9810708121) as the arbitrator to arbitrate on the dispute

between the parties.

The parties may contact the learned Arbitrator within 48 hours of receipt, by email, of a copy of this order.

The fees of the learned Arbitrator would be as per the Fourth Schedule to the Arbitration and Conciliation Act, 1996.

The learned Arbitrator would submit the requisite disclosure under Section 12(2) of the Arbitration and Conciliation Act, 1996 within a week of

entering on the reference.

The petition stands disposed of.