M/s Shiva Construction Pvt. Ltd. vs Union Of India And Ors

Vide order dated 12.10.2018 this Court in S.B. Arbitration Application No.122/2017 titled M/s.Shiva Construction Pvt. Ltd vs. Union of India & Others, finding that the agreed procedure for appointment of an arbitrator under the relevant clause in the agreement dated 31.12.2003 had failed, by resort to Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act of 1996') as prayed for, appointed Hon'ble Mr. Justice Ashok Parihar (Retired) as sole arbitrator to adjudicate the disputes between the parties.

The case of the applicant is that despite the appointment of the named as the sole arbitrator under the Court's order dated 12.10.2018, he neither entered into the reference nor started the arbitral proceedings. As such vide letter dated 8.12.2018 the applicant's counsel requested the learned arbitrator to fix a date for the first hearing such that the process for adjudicating the disputes between the parties could be commenced and disputes timely resolved/ adjudicated. It has been submitted that yet nothing came of the letter dated 8.12.2018 and even a response thereto was forthcoming. No date was fixed at any time even for filing of the claim. The arbitration is thus stillborn and stalled without any hope of the disputes between the parties thereto being resolved within statutory prescribed time or even otherwise.

Mr.Devi Dutt Sharma counsel for the applicant submitted that, in the circumstances, the mandate of an arbitrator be terminated under Section 15 of the Act of 1996 and a substitute arbitrator be appointed in terms of Section 15 (2) of the Act of 1996.

Mr.P.C. Sharma counsel for the non-applicant admits, as he had to, that Hon'ble Justice Ashok Parihar (Retired) was appointed as the sole arbitrator under the court's order dated 12.10.2018 on the application filed under Section 11(6) of the Act of 1996 by the applicant. Mr.P.C. Sharma, is also not in a position to deny the fact that despite the appointment of the sole arbitrator by the Court, he has not yet even fixed the date for filing of claim, despite the fact that over 11 months have since lapsed.

In the circumstance, I would allow this application Section 15 of the Act of 1996, terminate the mandate Hon'ble Justice Ashok Parihar (Retired) and appoint Hon'ble Mr. Justice Bhanwaroo Khan (Retired), E-734, Gandhi Nagar, Jaipur, 98292- 25441 as the sole arbitrator to adjudicate all disputes/ differences between the parties arising out of and relating to the agreement dated 31.12.2003 between them. Both the applicant and nonapplicant will be free to file their claim/ counter claim and replies thereto. The arbitrator shall if warranted make requisite disclosure under Section 11 (6) of the Act of 1996. Payment of the cost of Arbitration proceedings and arbitration fee shall be made as per the fourth schedule of the Act of 1996 as amended from time to time and computed as directed by the Arbitrator.

A copy of this order be communicated to Hon'ble Mr. Justice Bhanwaroo Khan (Retired), E-734, Gandhi Nagar, Jaipur, 98292-25441 for entering upon the reference and proceed thereon as per the Act of 1996 as amended from time to time and adjudicate expeditiously all disputes/ differences (factual and legal) between the parties arising out of/ relating to the agreement dated 31.12.2003.

The application stands allowed accordingly.