Court No. - 7
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 74 of 2015 Applicant :- Data Technosys (Engineers) Pvt. Ltd.
Opposite Party :- Union Of India Thru. G.M. N.E.R. And 2 Others Counsel for Applicant :- Vikas Budhwar Counsel for Opposite Party :- Vivek Singh,Rajnish Kumar Rai
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri Vikas Budhwar, learned counsel for the applicant and Sri Rajnish Kumar Rai, learned counsel for the respondent.
Clause 64 of the agreement between the parties, provides for arbitration. The applicant gave a notice. It appears that earlier the applicant approached this Court by filing an Arbitration and Conciliation Application U/S.11(4) No.56 of 2015, which was disposed of by order dated 30.7.2015 as under :
"Heard learned counsel for the petitioner and Shri Vivek Singh, learned counsel for the respondents.
The petitioner has moved an application under Section 11(6) of the Arbitration & Conciliation Act, 1996 for the appointment of an Arbitrator. He has moved in terms of Clause 64 of the Contract and requested the General Manager, North-Eastern Railway, Gorakhpur to initiate arbitration proceedings on 11.05.2015 but has received no response to do. The General Manager, North-Eastern Railway may act and proceed in pursuance of the letter dated 11.05.2015 within a next one month.
A copy of this order may be given to Shri Vivek Singh, learned counsel for the respondent for information and necessary communication within 48 hours.
The application stands disposed of."
It has been stated in the counter affidavit that by letter dated 16.7.2015, a panel of Officers was forwarded to the petitioner to select any two Officers to act as Arbitrator. The applicant, instead selecting the Arbitrator, filed the present application under Section 11 of the Arbitration and Conciliation Act, 1996 praying for appointment of an arbitrator.
Since prior to the filing of the application the arbitrator has already been proposed by the opposite party to the applicant on his demand, therefore, I do not find any failure on the part of the opposite party to discharge his obligation under the Contract with respect to appointment of an arbitrator.
In view of the aforesaid I do not find any good reason to appoint an Arbitrator under Section 11(6) of the Act.
Sri Rajnish Kumar Rai, learned counsel for the respondent states that since the applicant has not turned up even after the letter dated 16.7.2015 addressed to him intimating the name of Arbitrators and also since sub Section 5 in Section 12 of the Act was inserted by Act 3 of 2016 w.e.f. 23.10.2015, therefore, the opposite parties propose to communicate to the applicant the name of an independent arbitrator. He states that such a proposal shall be communicated to the opposite parties within one month from today.
Learned counsel for the applicant states that as soon as the communication is made by the opposite parties to the applicant, he shall immediately participate in the arbitration proceedings before the appointed arbitrator.
The application is dismissed with the aforesaid observations.
Order Date :- 27.4.2018/vkg