The main legal point established is that even when an arbitration award is set aside, the parties can initiate arbitration proceedings afresh, strictly in terms of the arbitration agreement between the parties.

JUDGMENT

1. This is a petition filed u/s 11 r/w 15 of the Arbitration and Conciliation Act, whereby the petitioner is seeking appointment of a fit and proper person to adjudicate the dispute that has arisen between the petitioner and the respondent.

2. Brief facts leading to filing of present petition are that, the petitioner had entered into an agreement with the respondent for execution of specific works pertaining to providing and laying down sewage lines and pumping stations at Ahmednagar. An agreement was executed on 26/04/1993 and work order was issued on 17/5/1993. During the course of execution of the said works certain disputes arose between the parties, as a consequence of which arbitration clause 70 of the General Condition of Contract of Central Government was invoked. In pursuance of such invoking of arbitration proceeding under the said clause, an interim award dtd. 22/9/2012, came to be passed on the basis of specific amount admitted by respondents as payable to the petitioner. Proceedings before the Arbitrator continued thereafter and eventually final award was passed on 30/4/2013 with corrigendum issued on 30/5/2013. Under the award, the petitioner was found entitled to payment of Rs.82,12,051.63 from the respondents. This was much less than the claim made by the petitioner, which was to the tune of Rs.9,41,45,618.00. It is an admitted position that respondents disbursed the amount of Rs.82,12,051.63 awarded by the Arbitrator.

3. Thereafter, the petitioner challenged the award by initiating proceeding before the Court of District Judge, Pune claiming that the mandate of arbitrator had expired at the time of publication of award, apart from raising other grounds on merits.

4. By judgment and order dated on 9/3/2021 the Court of District Judge, Pune, allowed the application, only on the ground that mandate of the arbitrator had terminated and accordingly, the award was set aside.

5. In this situation, the petitioner sent a notice on 27/3/2021 to respondent no.2, invoking condition no.70 i.e. arbitration clause executed between the parties and sought arbitration afresh, suggesting two names from amongst whom an arbitrator could be appointed.

6. On 29/6/2021 the respondents sent a counter notice to the petitioner seeking refund of amount paid as per award of the Arbitrator, which was later set aside alongwith interest at the rate of 10% p.a. It is an admitted position that the petitioner has already initiated proceeding u/s 9 of the aforesaid Act before the competent Court at Pune, in the context of the aforesaid counter notice issued by the respondents praying for restraining the respondents from recovering the amount from the petitioner in pursuance of letter dtd. 29/6/2021, which proceeding is pending before the competent Court.

7. Since the respondents did not respond in a positive manner to the aforesaid notice dtd. 27/3/2021, the petitioner approached this Court.

8. Mr. Firodiya, the learned Counsel for the petitioner referred to Clause 70 of the General Condition of Contract i.e. the arbitration clause and submitted that when earlier award was set aside, fresh arbitration proceedings could certainly be initiated as per the mandate of clause 70 of the General Condition of Contract. Learned Counsel specifically referred to Sec. 15(2) of the aforesaid Act to contend that when the mandate of the arbitrator had terminated, a substitute arbitrator could certainly be appointed in accordance with Clause 70 of the Arbitration Clause. Learned Counsel relied upon judgments of the Supreme Court in the cases of i) McDermott International Inc. Vs. Burn Standard Co. Ltd. (2006) 11 SCC 181 ii)Dakshin Haryana Buli Vitran Nigam Limited Vs. Navigant Technologies Private Ltd. (2021) 7 SCC 657 iii) National Highways Authority of India Vs. M. Hakeem & Anr (2021)9 SCC 1, to contend that there was no prohibition in law for a fresh round of arbitration between the parties when the arbitration award was set aside on any ground. The l