Point of Law: Arbitration - Merely because the panel of arbitrators are the retired employees who have worked in the Railways, it does not make them ineligible to act as the arbitrators.

JUDGMENT :

1. Petitioner- M/s BCC Developers & Promoters Pvt. Ltd., a company registered under the provisions of Companies Act, 1956, has preferred the present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of sole Arbitrator to adjudicate the dispute against respondent- M/s Delhi Metro Rail Corporation Limited, a joint venture of Government of India and Government of NCT of Delhi.

2. According to petitioner, Clause- 17 of the General Conditions of Contract (GCC) forming Agreement dated 23.05.2014 comprises the arbitration agreement between the parties, under which disputes with regard to “construction of EWS quarters for relocation of project affected persons at Trilokpuri in connection with H. Nizammudin – Gokulpuri corridor of line-7 of Delhi MRTS Project of Phase-III” can be resolved.

3. Petitioner claims to have participated in tender invited by the respondent for the afore-noted project, which was accepted by the respondent vide its Letter of Acceptance No. DMRC/20/III-132/2013 dated 27.03.2014, which was further accepted by the petitioner vide its letter of intent dated 28.03.2014. Thereafter, petitioner and respondent entered into and executed the Agreement dated 23.05.2014, according to which time for completion of the project was stipulated 12 months, having commenced on 31.12.2014. Meaning thereby, the work was to be completed by 31.12.2015, however, according to petitioner, due to defaults on the part of respondent like delay in making payments and in provision of drawings etc., petitioner could not complete the work within the stipulated time and it got delayed by 52 months and the works could be finally completed on 21.04.2020.

4. Petitioner has averred that it had sent various letters to respondent regarding intimation of work progress as well as clearance of pending bills, but respondent delayed the payments. Therefore, invoking Clause- 17 of GCC, petitioner issued a ‘notice of dispute’ vide letter dated 31.05.2021, enclosing detailed statement of claim detailing the disputes and issues pending between the parties in terms of Clause 17.4 of GCC. In response thereto, respondent issued a letter dated 02.06.2021 stating that in terms of Clauses- 17.4 read with Clause 17.5 of the GCC, petitioner had to raise disputes within 28 days of issuance of Performance Certificate dated 21.04.2020 and thereby, rendered the “notice of dispute” contractually invalid. The aforesaid communication of respondent dated 02.06.2021 was refuted by petitioner vide its letter dated 21.06.2021.

5. During the course of hearing, learned counsel for the petitioner claimed that in view of failure to initiate conciliation proceedings in terms of Clause-17.5 of GCC by the respondent, petitioner invoked arbitration, as contained in Clause-17.6 read with Clause-17.9 of GCC and also since respondent’s power to provide the panel of Arbitrators under Clause-17.9 stands disqualified under the provisions of amended Section 12 of Arbitration and Conciliation Act, 1996, the present petition has been filed seeking appointment of sole Arbitrator. Learned counsel further submitted that respondent’s letter dated 20.07.2021 providing a panel of five Arbitrators and calling upon petitioner to nominate its Arbitrator out of the said panel, is bad in law.

6. Lastly, it was submitted on behalf of petitioner that the disputes inter se parties have to be adjudicated strictly in terms of arbitration Agreement between the parties and petitioner is entitled to recover a sum of Rs. 17,62,50,063/- plus GST along with interest from respondent and thus, the present petition be allowed.

7. On the contrary, learned counsel appearing on behalf of respondent - M/s Delhi Metro Rail Corporation Limited has strongly opposed the claims raised by the petitioner. However, neither existence of Contract Agreement dated 23.05.2014 is disputed nor that in case of any disputes between the parties, the same shall be adjudicated