The main legal point established in the judgment is the requirement for a truly broadbased panel of arbitrators and the achievement of genuine counterbalancing of power in the appointment procedure for the arbitrator.

JUDGMENT

Sachin Datta, J.

1. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "A&C Act") seeks appointment of a sole arbitrator to adjudicate the dispute between the parties.

2. The disputes between the parties have arisen with respect to the work executed by the petitioner in furtherance of tender bearing No. ERTCC/C&MI17-18/I-75/T-139/AMC_LMC/Pkg-C dated 23.02.2018 floated by the respondent and awarded to the petitioner for the "AMC of Bhubaneshwar and Cuttack Intracity and Talcher-Bhubaneswar Intercity OFC Network and LMC in various cities of Odisha for a period of three years".

3. Initially, a purchase order dated 12.10.2018 was issued by the respondent upon the petitioner. Clause 14 of the aforesaid purchase order incorporates the arbitration agreement, which is in the following terms:

"14.0 ARBITRATION

All disputes or differences in respect of which the decision, if any, of the Project Manager and/or the Head of the Implementing Authority has not become final or binding as aforesaid shall be settled by arbitration in the manner provided herein below:

The arbitration shall be conducted by a sole arbitrator in case the amount of claim is less than Rs. 25 crore and by three member arbitral tribunal in case the amount of claim is greater than Rs. 25 Crore.

Sole Arbitration

The sole Arbitrator shall be chosen from a panel of empanelled Arbitrators maintained by POWERGRID. The same shall comprise of retired Judges and retired Senior executives of PSUs other than POWERGRID. Further, the choice of sole Arbitrator shall be governed by the amount of claim in the following manner:

(a) In case of invocation of arbitration by POWERGRID, POWERGRID shall, within 30 days, send a list of names of 3 arbitrators from its list/database of Arbitrators and the contractor shall within the period of further 30 days select anyone person to act as "Sole Arbitrator", which will be confirmed by POWERGRID and matter will be referred to such appointed Arbitrator for further arbitration proceedings.

(b) In case of invocation of arbitration by the Contractor, the Contractor shall request POWERGRID for its database of Arbitrators/chose from the list of Arbitrators available on POWERGRID's website, and the contractor shall, within 30 days, select anyone Arbitrator from the above to act as "Sole Arbitrator", which will be confirmed by POWERGRID within 30 days and matter will be referred to such appointed Arbitrator for further arbitration proceedings.

If the parties fail to appoint sole arbitrator within sixty (60) days after receipt of a notice from the other party invoking Arbitration, the appointment of sole arbitrator shall be done by Courts as per the provisions of Indian Arbitration and Conciliation Act, 1996 or any statutory modification thereof.

Three member arbitral tribunal

The arbitration shall be conducted by three arbitrators, who are retired High Court/Supreme Court Judges, one each to be nominated by the Contractor and the Employer and the third to be appointed by both the arbitrators in accordance with the Indian Arbitration & Conciliation Act. If either of the parties fails to appoint its arbitrator within sixty (60) days after receipt of a notice from the other party invoking the Arbitration clause, the arbitrator appointed by the party invoking the arbitration clause shall become the sole arbitrator to conduct the arbitration. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus regarding appointment of presiding Arbitrator within a period of 30 days from the appointment of the arbitrator appointed subsequently, the presiding arbitrator shall be appointed by Courts as per the provisions of Arbitration