IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE C.M.P.No.155/2017 BETWEEN:
Sri Mohan Babu, S/o Sri Bhaskara Rao, Aged about 56 years, Occ: Engineer and Contractor, R/o at 1/P, Oilmol Ramanath Colony, Sao Jose Areal (VP), Salcete, Goa. … PETITIONER (By Sri Sampath Bapat, Adv.) AND:
Union of India, Rep. by 1. The Chief Administrative Officer, Construction, South Western Railway, 18, Millers Road, Bengaluru – 46.
2. The Chief Engineer/West, Construction, South Western Railway, 18, Millers Road, Bengaluru – 46.
3. The Dy. Chief Engineer/HQ, Construction, South Western Railway, 18, Millers Road, Bengaluru – 46.
4. The General Manager, South Western Railway, GM Office Building, Gadag Road, Hubballi – 580 020. … RESPONDENTS (By Sri N.S.Sanjay Gowda, 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 the agreement dated 16.11.2009.
This petition coming on for admission, this day, the Court made the following:
ORDER Mr. Sampath Bhat, learned Counsel for the petitioner and Mr. N.S.Sanjay Gowda, learned Counsel for the respondents.
The petition is admitted for hearing. With the consent of the learned Counsel for the parties, the same is heard finally.
2. By means of this petition under Section 11 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 in respect of the agreement dated 16.11.2009.
3. Facts giving rise to the filing of this petition briefly stated are, that on 24.06.2008, a tender notice was issued by the respondents for doubling of the track between Ramanagaram – Mandya section. The tender of the petitioner was accepted on 24.04.2009, and thereafter on 16.11.2009, the parties entered into an agreement. As per Clauses 63 & 64 of the general conditions of the contract, the dispute between the parties had to be adjudicated by arbitration.
4. It is the case of the petitioner that even that he had successfully completed the works, the amount due to him was not paid. Accordingly, dispute between the parties arose. Petitioner sent a notice dated 15.07.2015 seeking appointment of arbitral tribunal. However, the notice sent by the petitioner failed to evoke any response. Under this factual background, the present petition has been filed.
5. Learned Counsel for the petitioner submits that from the date of notice i.e., 15.07.2015 till the filing of this petition, respondents had failed to constitute the arbitral tribunal. Therefore, they have forfeited the right to appoint an arbitrator.
6. Learned Counsel for the respondents submits that an independent and impartial arbitrator be appointed, keeping open the question of limitation.
7. I have heard the learned Counsel for the parties at length.
8. A three Judge bench of the Supreme Court in the case of ‘M/S. DEEP TRADING COMPANY VS M/S. INDIAN OIL CORPORATION & ORS., AIR 2013 SC 1479’, while taking into account the requirement of Section 11(6) of the Act, in paragraph 20 has held as under:
“20. If we apply the legal position exposited by this Court in Datar Switchgears to the admitted facts, it will be seen that the Corporation has forfeited its right to appoint the arbitrator. It is so for the reason that on 09.08.2004, the dealer called upon the Corporation to appoint the arbitrator in accordance with terms of Section 29 of the agreement but that was not done till the dealer had made application under Section 11(6) to the Chief Justice of the Allahabad High Court for appointment of the arbitrator. The appointment was made by the Corporation only during the pendency of the proceedings under Section 11(6). Such appointment by the Corporation after forfeiture of its right is of no consequence and has not disentitled the dealer to seek appointment of the arbitrator by the Chief Justice under Section 11(6). We answer the above questions accordingly.”
9. Thus, in view of the aforesaid enunciation of law, the respondents have forfeited the right to appoint an arbitrator. Accordingly, in view of the law laid down in M/s. Deep Trading Company stated supra and with a view to ensure appointment of an independent and impartial arbitrator as laid in Section 11(8) of the Act, I deem it appropriate to appoint with the consent of the parties, Sri Ajit J.Gunjal, Former Judge of this Court, as the sole arbitrator, to adjudicate the dispute between the parties. Office is directed to transmit the copy of this order to Sri Ajit J.Gunjal. Accordingly, petition is disposed of.
Sd/- JUDGE KK