Point of law: Arbitration -in the absence of an express agreement between the petitioner and the respondent subsequent to arising of disputes whereby the parties expressly agreed to waive the applicability of Section 12(5) of the Act, it cannot be said that the claim of the petitioner is barred by the principles of waiver, acquiescence and estoppel

ORDER :

1. In this petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, petitioner has sought for the following reliefs:

“(i) Allow the Petition by annulling the procedure adopted by the Respondent for the appointment of arbitrators under Clause 17.9 of the General Conditions of Contract Agreement dated 28th June 2010 produced at Annexure-A.

(ii) Appoint a new arbitral tribunal outside the panel of arbitrators maintained by the Respondent, in the matter of the dispute between the Petitioner and the Respondent.

(iii) Pass such further orders or directions as this Hon'ble Court may deem fit in the fact and circumstances of the present case.”

CONTENTIONS OF THE PETITIONER:

(i) The Petitioner “M/s. JMC-ATEPL Joint Venture” is a joint venture between JMC Projects (India) Ltd., and Arvind Techno Engineers Private Limited. The Respondent-BMRCL is a company incorporated under the Companies Act, 1956, as a Government Undertaking and is a joint venture of Government of India and Government of Karnataka and is a Special Purpose Vehicle entrusted with the responsibility of implementation of Bangalore Metro Rail Project.

(ii) It is contended that in the year 2009, the Respondent floated a tender inviting bids for the ‘construction of elevated structures (Viaduct) of approximate length 3.91 km and construction of three numbers of elevated metro stations of North-South Corridor of Bangalore Metro Rail Project. The Petitioner was successful in the bid for the Project and accordingly, the Respondent issued a Notice to proceed along with the Letter of Acceptance (LOA) on 30.04.2010. Pursuant to the LOA, an Agreement dated June 28, 2010 with the accepted Contract amount of Rs. 265,75,46,593/- (Rupees Two Sixty Five Crores Seventy Five Lakhs and Forty Six Thousand Five Hundred and Ninety Three) was entered into between the Petitioner and the Respondent for the execution of the Project. Upon completion of the entire project, as a consequence of the failure and defaults of the Respondent, disputes arose between the parties and the Petitioner was constrained to invoke Clause 17 of the General Conditions of Contract (for short ‘GCC’) which provides a mechanism for resolution of disputes arising out of the Contract. The GCC states that a dispute shall be deemed to have arisen when one party serves on the other party, a notice in writing stating the nature of the dispute; it further envisages that disputes shall be settled through two stages ‘Conciliation’ and ‘Arbitration’ as provided in the Act. Clause 17.9 of the GCC is the arbitration agreement which specifically provides for resolution of disputes by arbitration. Clause 17.9 reads as under:

“17.9 If the efforts to resolve all or any of the disputes through conciliation falls, then such disputes or differences, whatsoever arising between the Parties, arising out of touching or relating to construction/manufacture, measuring operation of effect of the Contract or the breach thereof shall be referred to Arbitration in accordance with the following provisions:

(a) Matters to be arbitrated upon shall be referred to Sole Arbitrator where the individual claim does not exceed Rs. Five (5) million or the total value of claims does not exceed Rs. Fifteen (15) millions. Beyond the above limits, there shall be three Arbitrators. For this purpose the Employer shall maintain a panel of Arbitrators with the requisite qualifications and professional experience relevant to the field to which the Claims relate. In case of a Sole Arbitrator, the Panel will be of three Arbitrators are to be appointed, the Employer will make out a panel of five. The Contractor and the Employer will choose one Arbitrator each from the above and the two so chosen will choose the third Arbitrator from the above Panel only who will act as the 'Presiding arbitrator' of the Arbitration Panel.

If in a dispute, the Contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel,