2023:BHC-OS:8307 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL ARBITRATION APPLICATION (L) NO.

32421 of 2022 WITH COMMERCIAL ARBITRATION PETITION (L) NO.4239 Of

2021 Capacite Infraprojects Ltd .. Applicant/

Petitioner Versus T. Bhimjyani Realty Pvt Ltd .. Respondent …

Dr.Abhinav Chandrchud with Shadab Jan, Sujit Lahoti, Tejasvi Kudarkar i/b Sujit Lahoti and Associates for the applicant.

Mr.Karl Tamboly with Mr.Aadhil Parsurampuria with Mr.Parth Jasani with Ms.Dhawani Bokaria i/b M/s. Purnanand and Co. for the respondent.

CORAM: BHARATI DANGRE, J.

DATED : 4th AUGUST, 2023 JUDGMENT:-

1 The application under sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996, seek appointment of an Arbitrator to adjudicate the disputes that have arisen between the parties.

Heard learned counsel Dr. Abhinav Chandrachud for the applicant and Mr. Karl Tamboly for the respondent.

2 The applicant is engaged in the construction of high- rise and/or super high-rise residential, commercial and institutional buildings in Mumbai, Delhi as well as other major cities across the country. The respondent on the other hand, is engaged in the business of buying, selling, renting and operating self owned or leased real estate such as Apartment Building, dwelling units, non-residential buildings and real estate development.

The respondent floated a tender for construction and development of residential project styled as ‘Nilkanth Woods’, Phase-1 and Phase-2 at Mullabaug, Thane. The proposal submitted by the applicant outlining the price schedule of the quantities for Phase-1 and Phase-2 of the project, culminated in a contract value for construction and development of Rs.320,25,00,000/- recorded in a Letter of Award ‘LOA’ dated 20/1/2014. In furtherance thereof, parties executed Articles of Agreement ‘AOA’ on 13/3/2014 in relation to Phase-1 of the project.

3 Articles of Agreement based on contract documents and Letter of Award stipulated that the contract documents shall be construed as forming part of the agreement and the parties shall respectively abide by, and submit themselves to the contract documents and perform their obligations therein.

4 The General Conditions of Contract (GCC) and the Special Conditions of Contract (SCC/PCC) also formed part of the original tender.

5 The General Conditions of Contract and Particular Conditions of Contract contained mechanism for dispute resolution and since it is the bone of contention between the parties, I deem it appropriate to reproduce the relevant clauses contained therein.

20.2 Appointment of the Dispute Adjudication Board “Disputes shall be adjudicated by a DAB in accordance with Sub-clause 20.4 (Obtaining Dispute Adjudication Board’s Decision). The parties shall jointly appoint a DAB by the date 28 days after a Party gives notice to the other party of its intention to refer a dispute to a DAB in accordance with sub-

clause 20.4 The DAB shall comprise three suitably qualified persons (“the member”) unless the parties agree otherwise. The DAB member shall be a member of the Indian Institute of Architects or of the Consulting Engineers Association of India. If the DAB is to comprise three persons, each Party shall nominate one member for the approval of the other Party. The Parties shall consult both these members and shall agree upon the third member, who shall be appointed to act as Chairman.

However, if a list of potential members is included in the Contract, the members shall be selected from those on the list, other than anyone who is unable or unwilling to accept appointment to the DAB.

20.3 Failure to Agree Dispute Adjudication Board “If any of the following conditions apply, namely:

(a)the Parties fail to agree upon the appointment of the sole member of the DAB by the date stated in the first paragraph of Sub-Clause 20.2 (viz. Date stated in the Appendix to Tender, i.e. 28 days after the commencement date)

(b) either Party fails to nominate the member (for