The party with vested interests should not appoint an arbitrator to ensure fairness and impartiality in conflict resolution.

JUDGMENT (Oral)

1. Petitioner-M/s Montecarlo Limited has preferred the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of Arbitrator to adjudicate the dispute with respondent.

2. According to petitioner, respondent-Regal Emporia Infratech Pvt Ltd, registered under the Companies Act, 1956, had invited tender for erection, construction, execution and completion of works relating to Civil & Structural including but not limited to other services related to civil and structure works from start to completion for a mix use project known as "Regal Emporia" situated at Plot No. C-02, Sector-4, Greater Naida, Gautam Budh Nagar and petitioner, having substantial experience in the civil work and construction activities, approached respondent and showed interest in various services to the respondent for the said project. Respondent vide Letter of Intent dated 11.03.2015 awarded the said work to petitioner and so, the parties entered into an agreement dated 07.04.2015. The execution of work commenced on 10.04.2015, which was to be completed on 10.04.2018.

3. According to petitioner, it suffered various losses due to the lapses on the part of respondent like delay in handing over of the drawings, delay in receipt of free issue of materials, delay in payments etc. and also due to situation beyond the control of the petitioner like Covid pandemic. Therefore, vide e-mail dated 04.06.2020, petitioner sent an email to the respondent seeking extension for completion of project which was granted and the date of completion was extended to 05.04.2021. The petitioner vide its letter dated 18.03.2021 claims to have submitted interim claim of Rs.41,03,45,815.15/- to respondent due to prolongation of project upto 01.03.2021. Since respondent failed to reply to the aforesaid letter dated 18.03.2021 and make payment of interim claim, petitioner issued a notice of dispute dated 30.03.2021 regarding the underutilized claim amounting to Rs.41,03,45,815.15/- for a period of July 2016 till March 2021.

4. It is further averred in the petition that several joint discussions between representative of both the sides to amicably resolve the disputes took place like on 09.10.2020 and 28.01.2021, however, parties could not resolve it. Therefore, in accordance with General Conditions of the Contract as well as Clause-21 of the Contract Agreement, petitioner vide Notice dated 30.03.2021 referred the dispute to Managing Director of the respondent. Once again vide letter dated 03.04.2021, petitioner sought extension of time for completion of the project till 03.08.2021 citing reasons for Force Majeure, however, respondent vide its letter dated 05.04.2021 refused to grant any further extension and also referred to Clause 20 (b) and 20 (c) of the Contract Agreement, which provides for termination of Contract Agreement by giving 30 days' time in writing. Thereafter, petitioner vide letter dated 13.04.2021 requested respondent to clear all dues and reimburse the claims.

5. Petitioner further claims to have sent letter dated 26.06.2021 informing respondent of commencement of arbitration and proposed name of a former Judge of Supreme Court of India as sole Arbitrator and sought respondent's consent. In reply to the aforesaid, vide letter dated 01.07.2021 respondent declined to the proposed name of Arbitrator by the petitioner and further, vide letter dated 28.07.2021 issued a letter to the petitioner informing that it is under the process of selecting an Arbitrator.

6. The stand of petitioner is that since respondent is an interested party, against which petitioner has raised claims, therefore, respondent has no right to propose or