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IN THE HIGH COURT OF DELHI
C. Hari Shankar, J.
N.N. Buildcon Private Limited - Appellant
Versus
HSCC (India) Private Limited - Respondent
Arb.P. 180 of 2021
Decided On : 11-11-2021
| Table of Content |
|---|
| 1. petition for arbitration under arbitration act (Para 1 , 2 , 3 , 4 , 15 , 16) |
| 2. dispute arises from construction agreement (Para 5 , 6 , 8 , 10 , 12) |
| 3. arbitration clause and its enforcement (Para 7 , 14 , 19) |
| 4. technical nature of disputes necessitates specific arbitrator expertise (Para 13 , 18 , 20) |
| 5. order for arbitration appointment (Para 21) |
JUDGMENT
1. This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 ("the 1996 Act"), seeking appointment of an Arbitrator to arbitrate on the disputes between the parties.
2. Notice was issued in this petition on 3rd February, 2021. Respondent 2 appeared on 4th May, 2021. Thereafter, there has been no appearance on behalf of Respondent 2. Respondent 1 has been served, by all modes including dasti. Respondent 1, however, did not appear before the Court on any of the dates of hearing.
3. No counter-affidavit has been filed, in response to the petition.
4. As such, I have heard Mr. Vineet Jhanji, learned Counsel for the petitioner, and proceeded to dispose of the petition.
5. The dispute arises out of an agreement dated 29th August, 2016, between the petitioner and Respondent 1. Respondent 1 executed the agreement on behalf Respondent 2, All India Institute of Medical Sciences (AIIMS). Mr. Jhanji has pointed out that, in the agreement, "Department" is defined as AIIMS, New Delhi/HSCC. As such, the petition has been filed arraigning HSCC as well as AIIMS as Respondents 1 and 2, respectively.
6. The petitioner was engaged by Respondent 1 for construction of a hostel in the premises of AIIMS, vide agreement dated 29th August, 2016. The plaintiff alleges that there had been defaults in payment, by the respondents, of the final bill raised by the plaintiff.
7. The agreement between the petitioner and the respondents provided, in Clause 25, thus:
"CLAUSE 25
SETTLEMENT OF DISPUTES & ARBITRATION
Except where otherwise provided in the contract, all questions and disputes relating to the meaning of the specifications, design, drawings and instructions here-in before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim, right, matter or thing whatsoever in any way arising out of or relating to the contract, designs, drawings, specifications, estimates, instructions, orders or these conditions or otherwise concerning the works or the execution or failure to execute the same whether arising during the progress of the work or after the cancellation, termination, completion or abandonment thereof shall be dealt with as mentioned hereinafter:
(i) If the contractor considers any work demanded of him to be outside the requirements of the contract, or disputes any drawings, record or decision given in writing by the Engineer-in-Charge on any matter in connection with or arising out of the contract or carrying out of the work, to be unacceptable, he shall promptly within 15 days request the authority as indicated in Schedule 'F' (Reviewing Authority) in writing for written instruction or decision. Thereupon, the Reviewing Authority shall give his written instructions or decision within a period of one month from the receipt of the contractor's letter.
If the Reviewing Authority fails to give his instructions or decision in writing within the aforesaid period or if the contractor is dissatisfied with the instructions or decision of the Reviewing Authority, the contractor may, within 15 days of the receipt of Reviewing Authorities' decision, appeal to the authority as indicated in Schedule 'F' (Appealing Authority) who shall afford an opportunity to the contractor to be heard, if the latter so desires, and to offer evidence in support of his appeal. The Appealing Authority shall give his decision within 30 days of receipt of contractor's appeal.
If the contractor is dissatisfied with the decision of the Appealing Authority, the contractor may within 30 days from the receipt of the Appealin
The absence of respondents in an arbitration matter can lead to an assumption of the petitioner's claims as admitted, allowing the court to appoint an arbitrator.
The main legal point established is the court's authority to refer arbitration matters to an appropriate arbitration center for the appointment of a suitable arbitrator, in accordance with the provis....
The Court emphasized the principle of 'when in doubt, do refer' and left the issues of limitation and compliance with the procedure for DRC under Clause 25 for consideration by the arbitrator.
The court's authority to appoint an arbitrator in cases where the parties are unable to agree, in accordance with the law laid down by the Supreme Court and the provisions of the Arbitration & Concil....
In proceedings under Section 11 of the Arbitration and Conciliation Act, 1996, the Court is only required to satisfy itself prima facie as to the existence of an arbitration agreement; all other ques....
The court has the authority to appoint a sole arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 when the parties fail to agree on the appointment.
The main legal point established is the applicability of Section 11(6) of the Arbitration and Conciliation Act, 1996, in cases where a party fails to appoint an arbitrator within the stipulated time ....
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