: Unilateral appointment of an arbitrator defeats unbiased adjudication; when an arbitration clause does not provide for a panel of arbitrators, the task of appointing an arbitrator devolves on the Court.

JUDGMENT

1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of sole Arbitrator to adjudicate the disputes inter-se the parties.

2. As per the averments made in the present petition, petitioner is a company registered under the Companies Act, 1956 and is engaged in the business of undertaking civil construction projects. Respondent is also a company registered under the Companies Act, 1956 and is working as a Central Public Sector Undertaking to implement power projects in the country.

3. It is further averred that the respondent-company invited the bid/tender for the subject package, namely, "3rd Raising of Dyke of Ash Pond 'A' & 'B' at NTPC-Tanda Project" on 05.08.2014 and after final bid, the aforesaid work was awarded to the petitioner vide its Letter of Award in form of Purchase Order dated 07.01.2015 amounting to work value of about Rs.27.50 crores having overall completion period of 20 months wherein the works of Dyke 'A' was to be executed within 11 months starting from 10.01.2015 to 09.12.2015, and thereafter, the works of Dyke 'B' within 9 months from 10.12.2015 to 09.09.2016. Subsequently, parties entered into a Contract Agreement dated 15.01.2015.

4. It is further averred that though the petitioner mobilised the machineries and manpower to execute the awarded works from day one, yet due to many reasons of delay, work of Dyke 'A' and divide bund was handed over to respondent on 09.03.2016. Though the respondent was well aware of the reasons of delay which were not in control of petitioner, respondent deducted huge amount of about Rs.67.51 lacs towards the Liquidated Damages, holding amount from the due payments of running account bills of the petitioner which were raised for the works of Dyke 'A' and divide bunds and the same was in complete violation and de hors to terms and conditions of the said Contract Agreement.

5. Learned counsel for petitioner submits that for commencement of Dyke 'B' works, the respondent failed to handover the required working fronts for a period of 57 days and the same were partially made available on 05.05.2016. Thus, a justified revised time schedule to give effect to envisaged original 9 months for completing Dyke 'B' works starting from 05.05.2016 was ought to be fairly extended up to 04.02.2017 by the respondent, yet the respondent issued unfair and unjust time extension stating that "completion period provisionally extended up to 04.02.2017 without prejudice to levy LD". Thereafter, for the reasons/delays attributable to the respondent six extensions of time for completion of said awarded works of the Contract were issued by the respondent, coupled with unfair deduction of 7.5 % amount in name of "LD Hold amount" from the RA bills raised for the progressive executed works for Dyke 'B'. The defect liability period of 12 months for such executed works has also ended on 31.10.2019. However, the respondent has not paid the outstanding due payments of Rs. 1,65,44,796/- till date to the petitioner and rather it imposed LD amount of Rs.82,44,435/- in May, 2021. Thereafter, disputes arose between the parties.

6. Petitioner served a notice dated 27.12.2021 upon respondent, seeking appointment of Arbitrator as per terms and provisions of Clause No.56 of GCC and the CMD and other senior officials of the respondent's company have received the said 'Notice of Arbitration' on 31.12.2021 as per track consignment/delivery report of India Post websites. Hence, the present petition has been filed.

7. During the course of hearing, learned counsel appearing on behalf of respondent has disputed the averments made in the present petition and submitted that as per Clause 56 and 57 of the General Conditions of Contract of the underlying contract Agreement dated 15.01.2015 postulates that 'the disputes shall be referred to the sole arbitration of the General Manager of NTPC limited, and if General Manager is unable or unwilling to act, to the