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.89 OF 2018 BETWEEN:
M/S. VENKATARAMANA CONSTRUCTIONS, 105, 9-13, LAKSHMIKRISHNA APARTMENT, R.C. ROAD, BEML LAYOUT, 3RD STAGE, RAJARAJESWARINAGAR, BENGALURU – 560 098.
A PARTNERSHIP FIRM REPRESENTED BY ITS MANAGING PARTNER SRI. D.V. SUBBA REDDY.
(BY SRI.VASUDEVA NAIDU S, ADV.) AND:
UNION OF INDIA REP BY 1. THE GENERAL MANAGER, SOUTH WESTERN RAILWAY, GADAG ROAD, HUBLI – 64.
2. THE DIVISIONAL RAILWAY MANAGER, BANGALORE DIVISION, SOUTH WESTERN RAILWAY, BENGALURU-23.
… PETITIONER 3. THE SENIOR DIVISIONAL ENGINEER (CO-ORD), BANGALORE DIVISION, SOUTH WESTERN RAILWAY, BENGALURU-23. ... RESPONDENTS (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 AGREEMENT BEARING NO.61/SBC/2015 DATED 30.03.2015 AND IN CONSONANCE WITH ARBITRATION AND CONCILIATION ACT, 1996 (AMENDED ACT OF 2016) IN THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr. Vasudeva Naidu S., learned Counsel for the petitioner.
Mr. N.S. Sanjay Gowda, learned counsel for the respondents.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. In this petition under Section 11 of the Arbitration & Conciliation Act, 1996, the petitioner, inter alia, seeks appointment of an Arbitrator.
3. Admittedly, the parties had entered into an agreement on 30.03.2015 where clauses-63 & 64 therein contain the arbitration clause. The petitioner sent a notice on 10.11.2016 to the respondent for appointment of Arbitrator. However, the aforesaid notice has failed to evoke any response to constitute an Arbitral Tribunal. In the aforesaid factual background, this petition has been filed.
4. The three Judge Bench of the Supreme Court in the case of ‘M/s. DEEP TRADING COMPANY vs. INDIAN OIL CORPORATION & OTHERS’ reported in 2013 [4] SCC 35 has held as follows:
“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 Clause 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.”
5. Thus, in view of the aforesaid enunciation of law, the respondents have forfeited the right to constitute an Arbitral Tribunal and to ensure appointment of independent and impartial Arbitrator as laid down under section 11 of the Act.
6. With the consent of the parties, I deem it appropriate to appoint Mr. I.S. Antin, Retired District & Sessions Judge, as sole Arbitrator to adjudicate the dispute between the parties.
7. Office is directed to transmit a copy of this order to Mr. I.S. Antin, Retired District & Sessions Judge.
Petition is disposed of.
Sd/- JUDGE AN/-