Point of law: In any agreement or contract, an arbitration clause is maintained with the object to speedy resolution of disputes and in cases where the disputes are of larger magnitude and multiple in number, to avoid any confusion or infirmity, should be referred to the same arbitral tribunal.

JUDGMENT :

The present petition under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 has been filed by the petitioner seeking appointment of the respondent’s Arbitrator upon its failure to appoint the same, for adjudication of disputes with regard to Concession Agreement dated 9th May, 2008. In addition, prayer is also made to declare that the purported appointment of Justice (Retd.) G.P. Mathur, former Judge, Supreme Court by the respondent is non-est and bad in the eyes of law.

2. The petitioner-Panipat Jalandhar NH-1 Tollway Private Limited had entered into a Concession Agreement dated 9th May, 2008 with respondent -National Highway Authority of India (NHAI) for Six-Laning of Panipat-Jalandhar Section of NH-1 from Km 96.00 to Km 387.10 (length of 291.10 Km) in the State of Haryana and Punjab to be executed on Built-Operate-Transfer (Toll) basis on Design-Build-Finance-Operate (DBFO) pattern under NHDP Phase-V. The duration of the Concession Agreement was 15 years commencing from 11th May, 2009 till 11th May, 2024.

3. According to petitioner, subsequent to entering into the Concession Agreement, petitioner started the work, however, certain disputes arose between the parties and those disputes pertaining to the year 2013 are pending before an independent arbitral tribunal.

4. Petitioner has claimed that out of the 291.1 km, the work on 269 km was completed when respondent took a decision to delink 22.1 km out of the total length, for the delay and failure on the part of respondent to hand over the stretch and consequently, due to this delinking, petitioner suffered severe loss to the tune of more than INR 2,000 crores. Accordingly, petitioner sent a Notice of Dispute dated 25th October, 2019 to the respondent. Since the parties failed to resolve the disputes, petitioner invoked arbitration under clause 44.3 of the Concession Agreement and issued a notice dated 7th February, 2020 calling upon the respondent to confer a set of Arbitrators. However, on 4th December, 2020 respondent suspended the Concession Agreement, (against which petitioner preferred a petition under Section 9 of Arbitration and Conciliation Act, 1996 [OMP (I) (COMM) 421/2020].

5. According to petitioner, the disputes with regard to suspension and termination of aforesaid Concession Agreement are pending adjudication before the second arbitral tribunal comprising of Justice (Retd.) M.K. Sharma, Presiding Arbitrator, Justice (Retd.) A.K. Sikri as petitioner’s nominee Arbitrator and Justice (Retd.) G.P. Mathur as respondent’s nominee.

6. During the course of hearing, Ms. Meenakshi Arora, learned senior counsel appearing on behalf of petitioner submitted that upon respondent’s failure to appoint its nominee Arbitrator, petitioner had preferred a petition under Section 11(6) of the Act, however, vide order dated order dated 4th May, 2021 this Court appointed Justice (Retd.) G.P. Mathur as nominated arbitrator on behalf of the respondent proposed by respondent itself. Further submitted that the said appointment was subject to furnishing of consent by Justice (Retd.) G.P. Mathur and necessary disclosure under Section 12(5) of the Act. Accordingly, a declaration was given on 25th May, 2021 by Justice (Retd.) G.P. Mathur that he has been appointed arbitrator in three other matters by respondent-NHAI in last three years.

7. Further, since parties failed to resolve their differences as highlighted in the Dispute Notice, petitioner issued notice dated 4th June, 2021 to the respondent invoking arbitration and appointed Mr. V.K. Tyagi as its nominee arbitrator and called upon the respondent to appoint its nominee arbitrator within 30 days. It was contended on behalf of petitioner that invocation of arbitration vide notice dated 4th June, 2021 pertains to disputes which are distinct separate and independent of disputes arbitrated by the first and second arbitral tribunal. However, vide its communication dated 17th June 2021, respondent requested to