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. 257 OF 2017 BETWEEN:
SRI M. S. DAYANANDA MURTHY R/O.NO.1633, RUPA SADANA OPP. KALISAM PARK T. P. KAILASAM ROAD SAPATHAGIRI EXTENSION TUMKUR REP. BY HIS GPA HOLDER SRI. GAJEDNRA BABU. ... PETITIONER (BY SRI SAMPATH BAPAT, ADV.) AND:
1. UNION OF INDIA REP. BY THE GENERAL MANAGER SOUTH WESTERN RAILWAY GADAG ROAD HUBLI-64.
2. THE DIVISIONAL RAILWAY MANAGER MYSORE DIVISION SOUTH WESTERN RAILWAY IRVIN ROAD MYSORE-580 001.
3. THE SENIOR DIVISIONAL ENGIENER (CO -ORD) MYSORE DIVISION SOUTH WESTERN RAILWAY IRVIN ROAD MYOSRE-580 001. ... RESPONDENTS (BY SRI ABHINAY Y. T., ADV.) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT A SOLE ARBITRATOR TO RESOLVE THE DISPUTES AND OUTSTANDING ISSUES BETWEEN THE PARTIES IN ACCORDANCE WITH THE PROVISIONS OF AGREEMENT BEARING NO. 19/MYS/2013 DATED 06.02.2013 AND IN CONSONANCE WITH ARBITRATION AND CONCILIATION ACT, 1996 (AMENDED ACT OF 2016) IN THE INTEREST OF JUSTICE.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Sri Sampath Bapat, learned counsel for petitioner.
Sri Abhinay Y.T., learned counsel for respondents.
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(6) of the Arbitration and Conciliation Act, 1996, the petitioner inter alia seeks for appointment of a Sole Arbitrator to resolve the disputes between the parties.
4. When the matter was taken up for consideration today, learned counsel for the parties submitted that the petitioner and the respondents had entered into an agreement on 06.02.2013. In view of the dispute that arose between the parties in respect of the said agreement, the petitioner had sent a notice dated 13.03.2017 and the respondents had replied to the same on 28.04.2017. It is through the said reply, the respondents have requested the consent of the petitioner to waive off the applicability of Sub-section 12(5) of Arbitration and Conciliation (Amendment) Act, 2015, the petitioner did not agree to the same and has filed this petition. The relevant extract of the arbitration clause reads as under:
“64.(1) Demand for Arbitration (i) In the event of any dispute or differences between the parties hereto as to the construction or operation of this contract, or the respective rights and liabilities of the parties on any matter in question, dispute or difference on any account, or as to the withholding by the Railway of any certificate to which the Contractor may claim to be entitled to, or if the Railway fails to make a decision within 120 days, then and in any such case, but except in any of the “excepted matters” referred to in Clause 63 of these conditions, the Contractor, after 120 days but within 180 days of his presenting his final claim on disputed matters, shall demand in writing that the dispute or difference be referred to arbitration”.
5. Admittedly, in the instant case, the arbitral proceedings are yet to commence. Therefore, in view of Section 12(5) of Arbitration and Conciliation (Amendment) Act, 2015, an independent and impartial Arbitrator is required to be appointed as a Sole Arbitrator and an employee of the respondents is ineligible to be appointed as a Sole Arbitrator.
6. Accordingly, with the consent of learned counsel for the parties, Mr. I.S. Antin, Retired District and Sessions Judge is appointed as a Sole Arbitrator to adjudicate the dispute between the parties. Office is directed to transmit a copy of this order to Mr. I.S. Antin, Retired District and Sessions Judge.
Accordingly, the petition is disposed of.
Sd/- JUDGE ST