Parties to arbitration agreements must nominate arbitrators from a broad-based panel, ensuring independence and neutrality, while upholding party autonomy as per the SAROD Rules.

JUDGEMENT :

JYOTI SINGH, J.

1. These petitions are filed by the Petitioners under Section 11(6) of the Arbitration and Conciliation Act, 1996 (‘1996 Act’) for appointment of Arbitrators to adjudicate the disputes between the parties. On account of similitude of questions of law involved in the three petitions, they were heard together with the consent of the parties and are being decided by this common judgment. ARB.P. 1829/2024.

2. Petitioner and Respondent/National Highway Authority of India (NHAI) entered into a Concession Agreement (‘CA’) on 23.04.2018 for ‘Four Laning of Villupuram - Puducherry Section of NH-45A (New NH-332) from Km 0.000 to Km. 29.000 (Design Chainage) under Bharatmala Pariyojana Phase-I (Residual NHDP Phase-IV works) on HAM’ in the State of Tamil Nadu and Union Territory of Puducherry.

3. Petitioner avers that it performed all its obligations as required under Article 4.1.2 of CA within the stipulated period but NHAI failed to satisfy the conditions precedent under the Agreement and illegally issued letter dated 23.10.2019 claiming deemed termination of the CA. Since CA was deemed to be terminated, Petitioner vide letter dated 25.11.2019 requested NHAI to reimburse the expenditure incurred by the Petitioner in terms of Article 4.5 of the CA and by a subsequent letter dated 28.04.2022, sought damages, maintenance costs, other expenses and interest on the amounts due and payable by NHAI, followed by reminder letter dated 21.06.2022.

4. It is averred that on 15.09.2022, Regional Officer, Chennai/NHAI issued a letter to CGM (T) TN recommending release of Rs. 8.31 crore and for execution of a settlement agreement. On 16.09.2022, Petitioner notified the dispute to NHAI under Article 38 of CA and once again requested for release of outstanding due, but to no avail. By letter dated 17.10.2022, Petitioner consented to refer the disputes to Conciliation and Settlement Committee of Independent Experts (‘CCIE’) for conciliation and settlement in terms of Article 38 of CA read with NHAI Policy Circular dated 09.04.2021. In response thereto and in compliance with Article 38.2 of CA, NHAI called a meeting vide letter dated 13.02.2024 to resolve the disputes amicably. However, since all efforts to amicably settle the disputes failed, vide invocation notice dated 23.05.2024, Petitioner informed NHAI of appointment of a retired Judge of Punjab and Haryana High Court as its nominee Arbitrator and called upon NHAI to appoint its nominee Arbitrator.

5. It is further averred that NHAI did not agree to the name of the Arbitrator nominated by the Petitioner and vide letter dated 26.06.2024 insisted that as per applicable Arbitration Rules of the Society for Affordable Redressal of Disputes (‘SAROD Rules’), Petitioner was obliged to nominate the Arbitrator only from the list of empanelled Arbitrators maintained by Society for Affordable Redressal of Disputes (‘SAROD’). By letter dated 01.08.2024, NHAI again requested the Petitioner to choose its nominee Arbitrator from the SAROD panel. In this backdrop, present petition was filed.

ARB.P. 2090/2024

6. NHAI invited proposals by its Request for Proposal (‘RFP’) dated 20.09.2018 for undertaking development and operation/ma