Advocates:
Advocate Appeared:
For the Appellant :Mr. Anirudh Wadhwa, Advocate, (through VC.) Mr. Gurmohan Singh Bedi, Advocate, Mr.Pawandeep Singh, Advocate, Mr. Anand Vardhan Khanna, Advocate, Mr. Kartik Gupta, Advocate, Mr. Rahul Rohilla, Advocate
For the Respondent:Mr. Aman Bahri, Addl. A.G. Haiyana. Mr. Vicky Chauhan, Advocate for Mr. Deepak Balyan, Advocate

JUDGMENT :

Suvir Sehgal, J.

This order shall dispose of both the above noted petitions as they involve common question of law and facts.

2. For the sake of convenience, factual position is being taken from ARB-337 of 2017.

3. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Arbitration Act') for constitution of an independent and impartial Arbitral Tribunal.

4. Counsel for the petitioner submits that a bid submitted by the petitioner for construction of a four lane railway over bridge at Level Crossing No. 61-A on Delhi Bathinda Railway Line (hereinafter referred to as 'the Project') was awarded to the petitioner vide letter dated 30.07.2006, Annexure P-2, at a contract price of Rs.22.34 crores and the petitioner furnished, Performance Security to the respondents for an amount of Rs.1,11,75,000/-.

5. He submits that although the project was required to be completed within 15 months but there were continuous delays and the petitioner sent a chain of letters appended at Annexure P-3, to the respondents requesting them to increase the contract price and compensate it and by letter dated 04.02.2009, Annexure P-4, respondents were requested to appoint a Conciliator for an amicable settlement. Counsel submits that the project was completed on 31.03.2009 and by letter dated 10.09.2009, Annexure P-7, respondents intimated that the request for conciliation has not been approved and that the petitioners may initiate the process of appointment of Arbitrator as per methodology agreed upon between the parties under Clause 25.3, Annexure P-5, of the General Conditions of the Contract. Counsel submits that the petitioner nominated Sh. O. P. Goyal as its Arbitrator and the respondents appointed Sh. H.R. Raheja, a serving officer of the respondents and Sh. R.K. Aggarwal, Enginner-in-Chief (Retd.) PWD (B&R) was appointed as the Presiding Officer. Counsel submits that after expressing doubts about the impartiality of the Tribunal by its communication, Annexure P-11, petitioner approached this Court by filing a petition (ARB-77 of 2010), for appointment of an impartial arbitrator on behalf of the respondents but the petition was dismissed vide order dated 14.07.2011, Annexure P-12. He submits that SEP and review preferred by the petitioner were dismissed vide order dated 07.12.2012 and 13.03.2013, Annexure P14 and P-17, respectively. By referring to the proceedings, Annexure P-19, counsel submits that the Arbitral Tribunal continued with the proceedings but no effective hearing took place. In the meantime, the Arbitration Act was amended and as Section 12(5) was inserted on 23.10.2015, the petitioner submitted an application before the Arbitral Tribunal requesting the arbitrators to file a certificate of disclosure in terms of the amended provision, but the application was disposed of by the Arbitral Tribunal vide its order dated 15.01.2016, Annexure P22. Counsel submits that the petitioner filed a petition under Sections 14 and 15 of the Arbitration Act before the learned District Judge, Chandigarh and despite multiple requests by the petitioner, the Arbitral Tribunal continued with the proceedings, which were terminated on 03.10.2017, Annexure P-30, under Section 25(a) and 32(2)(c) of the Arbitration Act. Counsel asserts that as the claims of the petitioner have not been adjudicated, by communication dated 28.10.2017, Annexure P-31, petitioner nominated a former Judge of this Court as its Arbitrator and requested the respondents to nominate their Arbitrator but the respondents rejected the request by its letter dated 30.11.2017, Annexure P-32, forcing the petitioner to file an instant petition. Counsel submits that during the pendency of the petition, the application filed under Section 14/15 of the Arbitration Act has been rejected by the learned District Judge, Chandigarh, vide order dated 02.08.2023, which has been challenged in the connected case.

6. Counsel for the petitioner has argued t