IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE CIVIL MISCELLANEOUS PETITION NO.280/2017 BETWEEN:
GANNON DUNKERLEY AND CO. LTD. NEW EXCELSIOR BUILDING IIIRD FLOOR, A.K. NAYAK MARG FORT MUMBAI-400 001.
REPRESENTED BY ITS MANAGER SRI P.V.R. SATYANARAYANA. …PETITIONER (BY SRI S. VIVEKANANDA, ADV.) AND:
ONGC MANGALORE PETROCHEMICALS LIMITED NO.72/4, CUNNINGHAM ROAD OPP. COTTAGE INDUSTRIES EXPOSITION BANGALORE-560 052. …RESPONDENT (BY SRI SYED KASHIF ALI, ADV. FOR M/S. SUNDARASWAMY & RAMDAS, ADV.) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) AND (6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR ON BEHALF OF THE RESPONDENT HEREIN AND ALSO AN UMPIRE FOR ADJUDICATING THE DISPUTE THAT HAS ARISEN BETWEEN THE PETITIONER AND THE RESPONDENT AND PASS SUCH OTHER OR FURTHER RELIEFS AS THIS HON’BLE COURT DEEMS FIT, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri S. Vivekananda, learned counsel for petitioner. Sri Syed Kashif Ali, learned counsel for M/s. Sundaraswamy and Ramdas for respondent.
2. The petition is admitted for hearing. With the consent of the parties, the matter is heard finally.
3. In this petition under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’ for short), the petitioner inter alia seeks for appointment of an Arbitrator on behalf of the respondent and also an umpire for adjudicating the dispute that has arisen between the parties.
4. The facts leading to filing of this petition briefly stated are that the respondent-ONGC Mangalore Petrochemicals Limited invited tender for construction structures at Aromatic Complex Project, Mangalore Special Economic Zone, Mangalore. The petitioner participated in the tender and was declared as a successful bidder. Thereupon, an agreement was executed between the parties on 07.09.2010. Thereafter, the petitioner sent a notice on 03.12.2016 to the respondent with regard to its claim and proposed the name of Sri M. Ravindra, Former Chairman, Railway Board. However, the respondent sent a reply dated 13.01.2017 which was evasive in nature. Thereupon, the petitioner has filed this petition.
5. I have heard the learned counsel for the parties at length.
6. The arbitration clause which is contained in General Conditions of Contract namely, Clause-9.2.0.0 reads as under:
“9.2.0.0 Two Arbitrators and an Umpire a) For Global Tenders and Indigenous Tenders above Rs. One crore, the following Arbitration clause will be applicable.
i. Except as otherwise provided elsewhere in the contract if any dispute, difference, question or disagreement arises between the parties to the contract or their respective representatives or assignees, at any time in connection with construction, meaning, operation, effect, interpretation of or out of the contract or breach thereof the same shall be decided by an Arbitral Tribunal consisting of three Arbitrators. Each party shall appoint one Arbitrator and the Arbitrators so appointed shall appoint the third Arbitrator who will act as Presiding Arbitrator.
ii. In case a party fails to appoint an arbitrator within 30 days from the receipt of the request to do so by the other party or the two Arbitrators so appointed fail to agree on the appointment of third Arbitrator within 30 days from the date of their appointment, upon request of a party, the Chief Justice of India or any person or institution designated by him (in case of International Commercial Arbitration) shall appoint the Arbitrators/Presiding Arbitrator. In case of domestic contracts, the Chief Justice of the High Court or any person or institution designated by him within whose jurisdiction the subject purchase order/contract has been placed/made, shall appoint the arbitrator/Presiding Arbitrator upon request of one of the parties”.
7. Thus, from the perusal of the aforesaid clause, it is clear that, each party has a right to nominate an Arbitrator and the Arbitrators so appointed shall appoint the third arbitrator, who will act as the Presiding Arbitrator.
8. Admittedly, the petitioner has proposed the name of Sri M. Ravindra, Former Chairman, Railway Board. Even though the respondent has forfeited the right to nominate the Arbitrator under the arbitration clause, yet they have filed a memo dated 20.07.2018 proposing the name of Mr. Justice N. Kumar, a Former judge of this Court, to which the learned counsel for petitioner submitted that he has no objection to the aforesaid nomination made by the respondent. Further, both the parties mutually agree that the venue of arbitration shall be at Bengaluru.
9. Accordingly, the petition is disposed of with liberty to the aforesaid Arbitrators to convene a meeting to nominate a Presiding Arbitrator.
Sd/- JUDGE ST