IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE C.M.P.No.71 OF 2018 Between:
M/s. SPML Infra Limited, (Formerly Subhash Projects and Marketing Limited), A Public Limited Company incorporated Under the Companies Act, 1956, Having its Registered Office at: No.F-27/2, Okhla Industrial Area, Phase-II, New Delhi-110 026.
Corporate Office at: SPML House, Plot No.65, Sector-32, Industrial Area, Gurgaon-122001, Haryana.
Present Regional Office at:
M/s. SPML Infra Limited, No.41/7, Cristu Complex, 5th Floor, B-Wing South Portion, Lavelle Road, Bengaluru-560 001.
Duly represented by its Authorised Representative Sri.J.R.Manjunatha Swamy, General Manager-(BD & Projects) ... Petitioner (By Sri. L. M. Chidanandayya, Adv.,) And:
Haveri Municipal Council, City Municipal Council, Near M.M.Circle, Haveri-580 110, Karnataka, Represented by the Municipal Commissioner.
…Respondent This C.M.P. is filed under Section 11(5) of the Arbitration and Conciliation Act 1996, praying to appoint an alternate, neutral and independent sole Arbitrator having sound knowledge in the field of Engineering and contract to adjudicate the dispute between the petitioner and respondents in respect to establishment of project work in terms of clause 24.4 of GCC and 24.4 of PCC which forms an integral part of the contract agreement dated: 24.12.2014 produced at Annexure-A entered into between the petitioner and the respondents in the interest of justice.
This C.M.P. coming on for Admission this day, the court made the following:
O R D E R Sri. L.M. Chidanandayya, learned Counsel for the petitioner.
None for the Respondent, though served.
2. By means of this petition under Section 11(5) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as ‘the Act’, for short), the petitioner inter alia seeks appointment of a sole arbitrator to adjudicate the dispute that has arisen between the Petitioner and the Respondent.
3. I have heard the learned counsel for petitioner at length and perused the records.
4. It is evident from the records that the Tender was invited for construction of works and services for Operation & Management of 24x7 water supply system to Haveri City Municipal Council and services for Operation & Maintenance of 24x7 water supply system for Haveri Town. The Tender of the petitioner-company was accepted and an Agreement was executed between the parties on 24.12.2014. Clause 24.3 and 24.4 which contains the Arbitration clause, reads as under:-
“24.3 The Adjudicator shall be paid by the hour at the rate specified in the PCC, together with reimbursable expenses of the types specified in the PCC, and the cost shall be divided equally between the Employer and the Contractor whatever decision is reached by the Adjudicator. Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Arbitrator’s written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator’s decision shall be final and binding.
24.4 The arbitration shall be conducted in accordance with the arbitration procedures published by the institution named and in the place specified in the PCC”.
5. The petitioner by letters dated 03.10.2017, 15.06.2017 and 11.07.2017 sought for appointment of an Adjudicator to resolve the dispute arisen between the parties. However, the Adjudicator was not appointed by the Respondent. Thereafter, by a letter dated 09.01.2018, sought for appointment of an Arbitrator. The Respondent did not respond to the same. In the aforesaid factual background, this petition has been filed.
6. From perusal of clause-24.3 of the Agreement, it is evident that the aforesaid clause provides adjudication of the dispute between the parties by the sole Arbitrator. The Respondent has failed to act as per the terms and conditions of the Agreement. Therefore, I deem it appropriate to appoint Mr.Ajit J.Gunjal, a Former Judge as a sole Arbitrator to adjudicate the dispute between the parties.
7. In view of the preceding analysis, the petition filed by the petitioner under Section 11(5) of the Act succeeds and is hereby allowed. In view of the aforesaid facts and circumstances of the case, Mr.Ajit J.Gunjal, a Former Judge of this Court is appointed as sole Arbitrator to adjudicate the dispute between the parties. A copy of this order be dispatched to the Arbitration Centre, Khanija Bhavan, Bengaluru, for necessary action in that regard. Learned counsel for the petitioner to also approach the Arbitration Centre with the relevant papers to be filed therein. The learned Arbitrator appointed herein shall thereupon enter reference and proceed with the matter in accordance with law and the Rules governing the Arbitration Centre.
Accordingly, petition is disposed of.
Sd/- JUDGE Srl.