* IN THE HIGH COURT OF DELHI AT NEW DELHI + ARB.P. 1108/2023 RBCL PILETECH INFRA .....Petitioner Through: Ms. Tanya Karnwal, Mr.

Harshit Batra, Advs.

versus BHOLASINGH JAIPRAKASH CONSTRUCTION LIMITED & ORS. .....Respondents Through: Mr. Animesh Sinha, Mr. Shubham Budhiraja and Ms. Ishita Pandey, Advs. for R-2 Mr. K.K. Tyagi, Adv. for R-3 CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR JUDGMENT (ORAL)

% 22.07.2024

1. This is a petition under Section 11(6), $~3 of the Arbitration and Conciliation Act, 1996, 2“the1996Act”hereinafter, for reference of the disputes which have primarily arisen between the petitioner and Respondent 1 Bholasingh Jaiprakash Construction Ltd., 3“BJCL”hereinafter in the context of Work Order dated 4 April 2022 executed between them.

1(6) Where,underanappointmentprocedureagreeduponbytheparties,—

(a) apartyfailstoactasrequiredunderthatprocedure;or (b) theparties,orthetwoappointedarbitrators,failtoreachanagreementexpectedofthem underthatprocedure;or (c) aperson,includinganinstitution,failstoperformanyfunctionentrustedtohimorit underthatprocedure, theappointmentshallbemade,onanapplicationoftheparty,bythearbitralinstitution designatedbytheSupremeCourt,incaseofinternationalcommercialarbitration,orbytheHigh Court,incaseofarbitrationsotherthaninternationalcommercialarbitration,asthecasemaybe]to takethenecessarymeasure,unlesstheagreementontheappointmentprocedureprovidesother meansforsecuringtheappointment.

Signature Not Verified Signature Not Verified

2. Respondent 1 is BJCL, Respondent 2 is National Thermal Power Corporation, 4NTPChereinafter which is the owner of the site at which the project is being undertaken and Respondent 3 is Bharat Heavy Electrical Ltd, 5BHELhereinafter which is undertaking the project work and had contracted the work, of effecting certain constructions at a site belonging to NTPC, to BJCL.

3. By the Work Order dated 4 April 2022, BJCL sub-contracted part of the work to the petitioner.

4. The petitioner claims to have incurred idling charges, damages and the like, which, according to the petitioner, are payable by the respondents.

5. Clauses 12, 21, 28 and 33 of the Work Order are of relevance and may be reproduced thus:

“12. Water for construction shall be tapped from NTPC water supply as located by NTPC. Water meter shall be installed and charges ofwatershall be paidbyM/s RBCLPiletech Infra.

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21. Payment shall be released within 3 days of receipt of payment from BHEL for the portion/scope of works carried out by you and the quantities accepted/certified and paid by BHEL to BJCL, for your portion /scope of work. The payment shall be released to you after carrying out all deductions as per the work order/ contract conditions.

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Signature Not Verified Signature Not Verified

28. Any amount put on hold/retained by BHEL due to any reason attributable to M/s RBCL Pilatech Infra shall also be held back/ retained back by BJCL. This held back amount shall be released M/ s RBCL Piletech Infra after the release of the same from BHELtoBJCL.

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33. All other terms and conditions mentioned in the contract between BJCL and BHEL for the entire work shall be applicable to M/s RBCL Piletech Infra. Technical specification, the technical condition of the contract, GCC and SCC, and other documents as per the signed agreement between BJCL and BHEL shall form an integral part ofthis work order.”

6. Clause 36 of the Work Order envisaged resolution of disputes by arbitration by a sole arbitrator, to be appointed by mutual consent of both parties.

7. The petitioner addressed a notice under Section 21⁶ of the 1996 Act, invoking arbitration, to the respondents on 15 July 2023. Various claims have been raised in the said notice, with which this Court is not required to concern itself in the present Section 11(6) proceedings.

8. By the notice, the respondents were called upon to appoint a sole arbitrator to arbitrate on the disputes.

9. The aforesaid notice was opposed by BJCL and BHEL, though NTPC did not condescend to issue a repl