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IN THE HIGH COURT OF DELHI AT NEW DELHI
NAVIN CHAWLA, J.
M/S SAM (INDIA) BUILDWELL PVT .LTD. THROUGH ITS REGIONAL HEAD AND AR KARAN SAGAR AGGRWAL – Appellant
Versus
M/S COSLIGHT INDIAN TELECOM PVT LTD THROUGH ITS MANAGING DIRECTOR - Respondent
ARB.P. 88 of 2018
Decided on : 25-04-2018
Arbitration - Appointment of Sole Arbitrator - Arbitration and Conciliation Act, 1996 - Section 11 - Clause 22 of the General Conditions of the Contract (GCC) - Settlement of Disputes & Arbitration
Fact of the Case:
The petitioner filed a petition seeking appointment of a Sole Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996, due to disputes arising from an Agreement dated 8th December, 2010. The respondent objected to the petition, citing lack of territorial jurisdiction and specific appointment procedures for the arbitrator.
Finding of the Court:
The court found that it had jurisdiction to entertain the petition as the agreement vested jurisdiction in the court and was executed in New Delhi. The court also held that the specific terms of the agreement prevailed over the General and Special Conditions of the Contract. Additionally, the court ruled that the respondent's objection to the appointment of an arbitrator was without merit.
Issues: Territorial jurisdiction of the court and the appointment of the arbitrator as per the agreement's terms.
Ratio Decidendi: The specific terms of the agreement prevail over general and special conditions, and the court has jurisdiction as per the agreement. The court can appoint an arbitrator if the respondent fails to adhere to the appointment procedure.
Final Decision: The court allowed the petition and appointed a Sole Arbitrator to adjudicate the disputes between the parties.
NAVIN CHAWLA, J. (Oral)
1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) seeking appointment of a Sole Arbitrator to adjudicate the disputes that have arisen between the parties in relation to the Agreement dated 8th December, 2010 executed between the parties.
2. Clause 1 of the agreement incorporates the General Conditions of the Contract (GCC) as a part of the agreement.
3. Clause 22 of the GCC provides for resolution of the disputes through arbitration. The relevant extracts from the Arbitration Agreement are as under:-
| CLAUSE 22 |
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| Settlement of Disputes & Arbitration | Except where otherwise provided in the contract all questions and disputes relating to the meaning of the specifications design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim right matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instruction, offers or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, permission, completion or abandonment thereof shall be dealt with as mentioned hereinafter: (i) xxxxxxxxxx |
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| (ii) Except where the decision has become final and conclusive in terms of Sub-Para (i) above disputes or difference shall be referred for adjudication through arbitration by sole arbitrator appointed by the administrative head of the said EMPLOYER. If the arbitrator so appointed is unable or unwilling to act or resigns his appointment or vacates his office due to any reason whatsoever another sole arbitrator shall be appointed in the manner aforesaid. Such person shall be entitled to proceed with the reference form the stage at which it was left by his predecessor.
It is a term of this contract that the party invoking arbitration shall give a list of disputes with amounts claimed in respect of each such dispute alongwith the notice for appointment of arbitrator and giving reference to the rejection by the Managing Director EMPLOYER of the appeal.
It is also a term of this contract that no person other than a person appointed by the administrative head of the EMPLOYER as aforesaid should act as arbitrator and if for any reason that is not possible the matter shall not be referred to arbitration at all.
It is also a term of this contract that if the contractor does not make any demand for appointment of arbitrator in respect of any claims in writing as aforesaid within 120 days of receiving the intimation from the Architect that the final bill is ready for payment the claim of the contractor shall be deemed to have been waived and absolutely barred and the EMPLOYER shall be discharged and released of all liabilities under the contract in respect of these claims.
The arbitration shall be conducted in accordance with the provisions of the Arbitration and conciliation Act, 1996 (26 of 1996) or any statutory modification or re-enactment thereof and the rules made there under and for the time being in force shall apply to the arbitration proceeding under this clause.
It is also a term of this contract that the arbitrator shall adjudicate on only such disputes as are referred to him by the appointing authority and give separate award against each dispute and claim referred to him and in all cases where the total amount of the claims by any party exceeds Rs.1,00,000 the arbitrator shall give reasons for the award.
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