: In cases where one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in determining or charting the course for dispute resolution.

JUDGMENT

(Oral)

The hearing has been conducted through video conferencing.

I.A. 12235/2021 (exemption)

1. Allowed subject to all just exceptions.

2. Application is disposed of.

Arb. P. 923/2021 & I.A.12234/2021

3. The present petition has been filed by petitioner seeking appointment of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996.

4. Petitioner, a private limited company registered under the Companies Act, 1956, claims to be involved in the business of Facilities Management and Infrastructure Management Projects throughout India. Respondent is said to be a Special Purpose vehicle and a Joint Venture company of IRCON International Limited, a Government of India Undertaking, under the Ministry of Railways and Rail Land Development Authority incorporated under the Companies Act, 1956.

5. According to petitioner, on 09.09.2019 the respondent issued Notice Inviting Tender No. IRSD/HQ/TENDER/2019/21/SC/ Parking issued by the Indian Railway Station Development Corporation for the project "Management of Parking Area at Secunderabad Railway Station Along with Access Control for a period of 3 (Three) years" and petitioner submitted a bid thereto on 30.09.2019. Pursuant thereto, respondent invited petitioner to attend negotiation meeting on 30.10.2019 and after successful negotiations, respondent issued a Letter of Award bearing IRSDC/HQ/TENDER/ 2019/21/SC/Parking dated 08.11.2019 in favour of petitioner for the said project, to which petitioner gave its Letter of Acceptance on 16.11.2019.

6. It is further averred on behalf of petitioner that in terms of aforesaid Letter of Award, petitioner is required to pay annual license fee of Rs. 1,70,00,000/- which was duly deposited and also respondent was duly sent “Letter of Acceptance dated 16.11.2019” by the petitioner. Petitioner vide its letter dated 06.12.2019 also communicated the respondent about payment of first quarter of license fee and security deposit and acceptance of the project for period of three years. Further pleaded by petitioner that it sent an e-mail to the respondent informing that petitioner was ready to execute its part of obligation from 17.12.2019. However, despite visit by Director of petitioner from Hyderabad to New Delhi office of respondent on 05.12.2019 and 19.12.2019 for signing the Agreement, however, the agreement could not be signed on the plea of respondent that the format of Agreement was not ready. Once again, Director of the Petitioner visit the respondent’s office but he had to return empty hand back to Hyderabad, as authorized representative of respondent was said to be unavailable and the Agreement for the work could not be signed.

7. The respondent vide its communication dated 18.03.2020 asked for present of Director of petitioner for the purpose of signing the Contract Agreement, however, due to Covid 19 pandemic and declaration of Janta Curfew by the Hon’ble Prime Minister from 22.03.2020, none on behalf of petitioner could reach the respondent to sign the Contract Agreement. It is averred on behalf of petitioner that due to Covid pandemic and phrased lockdown, it became difficult for petitioner’s representative/Director to reach Delhi to sign the Agreement.

8. Further, it is averred that since petitioner did not hear anything from respondent regarding reopening after the lockdown period was over, the Director of petitioner sent an email dated 25.05.2020 to the respondent and thereafter, re-opened the parking services at Secunderabad Railway Station on 01.06.2020. Petitioner’s Director thereafter sent another mail dated 01.06.2020 to the respondent intimating that some illegal persons have been running parking and issuing receipts in the name of petitioner and petitioner is not responsible for such activities. After further communications dated 02 and 03 of June, 2020 gave authorization in favour of Mr. Rupesh Kumar and restarted operations at the parking from 06.06.2020 with a pro-rata licensee fee of 10%