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IN THE HIGH COURT OF ALLAHABAD
SAUMITRA DAYAL SINGH, J.
Siemens Limited - Applicant
Versus
Madhyanchal Vidyut Vitran Nigam Ltd. And Another – Respondent
Arbitration And Concili. APPL.U/S11(4) No. - 5 of 2019
Decided on : 18-01-2021
Constitution of India, 1950 - Article 215 - Arbitration and Conciliation Act, 1996 - Section 11(4), 11(6), 11(6)(c) - Review application - Arbitration – High Courts to be courts of record – Power of judicial review - Whether, it would be exercised, may be examined while wielding that power – Held, court prima facie satisfied that the respondent did not give up its preliminary objection and therefore, the consent recorded, is not a true reflection of the record of proceedings that existed before the Court - Without a doubt a mistake has thus crept in the order, probably, as suggested, owing to the three other similar applications having been dealt with on the same day wherein, upon consent, a sole arbitrator was appointed, in similar circumstances - Since, the consent did not exist, a review application would be maintainable - That being the nature of mistake, it is also not truly relevant that initially the respondent did not raise the ground of lack of consent. Once it appears to the Court that such consent was not existing, the Court owes a duty to itself, to keep its record straight - To deprive a litigant of rectification of a mistake in the Court's record, when that mistake otherwise appears to exist, solely because the litigant did not come to it in the first instance, may never be relevant for this Court considering the obligation cast on it under Article 215 of the Constitution of India. The Court is not a party to the dispute - On the other hand, a litigant has complained that its record is incorrect - Thereafter, it is necessary for the Court, as a non-partisan and independent adjudicator to correct its record especially, since the litigant is not shown to have accepted as correct the order – Ordered accordingly.
JUDGMENT :
SAUMITRA DAYAL SINGH,J.
Re: Civil Misc. Delay Condonation Application No. 1 of 2019 & Re: Civil Misc. Review Application No. 2 of 2019.
1. Heard Sri Girish Chand Sinha and Sri Mukesh Kumar Singh, learned counsel for the applicant in review application and Sri Anurag Khanna, learned Senior Advocate assisted by Sri Ronak Chaturvedi, learned counsel for the respondent-claimant.
2. The present review application has been filed by the Madhyanchal Vidyut Vitran Nigam Ltd. (herein referred to as the 'opposite party') being opposite party no.1 in Arbitration and Conciliation Application U/S 11(4) No. 5 of 2019. For ready reference, the relevant part of the order dated 08.05.2019, is quoted herein:
This application is field under Section 11(4) of the Arbitration and Conciliation Act, 1996 by which the applicant has prayed for appointment of sole Arbitrator to resolve the dispute.
The applicant is a company, indulged in manufacturing rendering services in the sector of electricity related to component, supply and distribution.
The applicant company has entered into an agreement with the respondents Madhyanchal Vidyut Vitran Nigam Limited for supply of certain goods and related services viz. Implementation.
The said agreement executed in between the applicant and respondent no.1 on 25th day of August, 2014. The said agreement dated 25th August, 2014 provides the special conditions of contract as well as general conditions of contract. The said agreement further provides as follows:-
"IN WITNESS whereof the parties hereto have caused this Agreement to be executed in accordance with the laws applicable in exclusive jurisdiction of the High Court Of Judicature in the state of Uttar Pradesh, India and all courts subordinate to its exclusive Jurisdiction on the 25th August 2014 indicated above."
Clause GCC 7.2 of the said agreement provides as follows:-
"The formal mechanism for the resolution of disputes shall be:
If the parties fail to resolve such a dispute or difference by mutual consultation within twenty-eight (28) days form the commencement of such dispute and difference, either party may require that the dispute be referred for resolution to the formal mechanisms, described below (The date of commencement of the dispute shall be taken from the date when this clause reference is quoted by either party in a formal communication clearly mentioning existence of dispute or as mutually agreed):
a. The mechanism for resolution of disputes for bidders shall be in accordance with the Indian Arbitration and Conciliation Act of 1996. The Arbitral Tribunal shall consist of 3 (three) Arbitrators. Each Party shall agree and nominate a third Presiding Arbitrator.
b. The Arbitrators shall necessarily be retired High Court Judges and the umpire shall be a
retired Chief Justice.
c. The place for arbitration shall be State of Uttar Pradesh."
Learned counsel for the respondent-Nigam has raised the preliminary objection about the maintainability of the instant application.
Learned counsel for the respondents has submitted that the conditions so as stipulated in Clause GCC 7.2 provides to resolve the dispute or the difference by mutual consultation within 28 days from the commencement of such dispute and difference.
Learned counsel for the respondent therefore submits that the applicant has not approached the Nigam as such has approached the U.P. Power Corporation Ltd. Lucknow who has nothing to do with the dispute or difference arose between the parties.
Per contra, learned counsel for the applicant has placed reliance on a document/letter dated 23rd August, 2018 by which the applicant has addressed the Executive Engineer, Madhayanchal Vidyut Vitran Nigam Limited, office of the Managing Director, 4A, Gok
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