Point of Law: Appointment of Arbitrator - Court can interfere when it is found that claim is time barred or there is no subsisting dispute - Once a dispute has already been adjudicated upon, it cannot be said to be a subsisting dispute which requires resolution.

ORDER :

1. The present application has been filed under Section 11 of the Arbitration and Conciliation Act (for short ‘the Act’) for appointment of an arbitrator for resolution of dispute between the parties. Arbitration clause in the agreement dated February 22, 2010, is not in dispute.

2. The learned Counsel for the applicants submitted that as during the currency of execution the project, there was dispute regarding price escalation the applicant prayed for appointment of an arbitrator by filing A.P. No. 92 of 2016 before this Court, which was disposed of on September 16, 2016 directing the appointing authority under to ensure constitution of Arbitral Tribunal. The Tribunal considered the claim. The contract was concluded on March 22, 2016. Final bill was prepared and submitted on December 16, 2016. As certain claims were rejected, fresh application was filed by the applicant for appointment of arbitrator on August 21, 2017. At this stage, the Court is only to examine as to whether there exists an arbitration clause in agreement. Merits of the case cannot be gone into. All other objections are open before the arbitrator. In support of his argument reliance was placed on judgment of Hon’ble the Supreme Court in Mayavati Trading Private Limited vs. Pradyuat Deb Burman, (2019) 8 SCC 714.

3. On the other hand, the learned Counsel for the respondent submitted that at the interim stage the applicant, raising certain disputes, sought appointment of an arbitrator. In terms of the direction issued by this Court in A.P. No. 92 of 2016 dated September 16, 2016 Arbitral Tribunal was appointed. The applicant submitted his claim petition on February 23, 2017, which was adjudicated upon by the Tribunal while passing award on December 11, 2020. The claim for which the Arbitral Tribunal is sought to be appointed by the applicant were part of the claim petition filed by him and have already been adjudicated upon by the Arbitral Tribunal. In fact by filing a subsequent demand notice on August 21, 2017 the applicant wishes to raise the same issues which he had been raised in the earlier arbitration proceedings and have already been dealt with and partly rejected. Once the claims made by the applicant have already been adjudicated upon by the arbitrator no question arises for appointment of fresh arbitrator.

4. Heard the learned Counsel for the parties and perused the relevant referred records. The fact that there is an arbitration clause in the concluded contract between the parties is not in dispute. It has come on record that during the currency of the execution of the project the applicant issued a notice to the respondents on July 02, 2015 calling the respondents to constitute the Arbitral Tribunal. The matter came to this Court. Vide order dated September 16, 2016 passed by this Court in A.P. No. 92 of 2016, this Court directed the appointing authority under the agreement to appoint an Arbitral Tribunal and conclude the reference as expeditiously as possible. It further came on record that the project stood executed on March 22, 2016 and the final bill was also submitted by the applicant on December 16, 2016. As according to the applicant on submission of final bill certain dispute remained, a request was made to the appointing authority vide letter dated August 21, 2017 for appointment of an Arbitral Tribunal. The summary of claims made therein is extracted below:

Summary of Claims: