JUDGMENT

PRATHIBA M. SINGH, J.

1. This hearing has been done through hybrid mode.

I.A. 30652/2024 (for exemption) in O.M.P. (T) (COMM.) 53/2024 I.A. 30654/2024 (for exemption) in O.M.P. (T) (COMM.) 54/2024 I.A. 30656/2024 (for exemption) in O.M.P. (T) (COMM.) 55/2024

2. Allowed, subject to all just exceptions. Applications are disposed of O.M.P. (T) (COMM.) 53/2024 & I.A. 30651/2024 (for interim stay) O.M.P. (T) (COMM.) 54/2024 & I.A. 30653/2024 (for interim stay)

O.M.P. (T) (COMM.) 55/2024 & I.A. 30655/2024 (for ad-interim stay)

3. The present petitions have been filed by the Petitioner- M/s. Radhika Engineering Co. under Section 14 read with Section 15 of the Arbitration and Conciliation Act, 1996 (hereinafter ‘the Act’) seeking substitution of the Sole Arbitrator. The claim of the Petitioner is that the ld. Sole Arbitrator adjudicating the disputes between the parties was unilaterally appointed by the Respondent and thereby, the Petitioner is seeking substitution of the ld.

Sole Arbitrator.

4. The arbitration which commenced in the year 2008 has still not culminated into the final award owing to repeated change of Arbitrators and apparently even due to the conduct of the parties themselves.

5. The Respondent had awarded three packages for construction and/or upgradation of Rural Roads under the Pradhan Mantri Gram Sadak (MPPRDA Contract) to the Petitioner. The said three packaged are numbered as MP-0735, MP-0737 and MP-0739 and were awarded to the Petitioner by the Respondent on 28th November, 2007. Thereafter, disputes arose under the performance of the said MPPRDA Contract and initially, one Shri A.K. Duggal was appointed as the Sole Arbitrator in 2008, in accordance with Clause 12 of the Terms and Conditions annexed with the MPPRDA Contract. The said Clause is extracted below:

“DISPUTES / ARBITRATION In the event of any dispute or difference arising between TCIL, and the tenderer in any matter covered by this contract or arising. directly or indirectly there from or connected or concerned with the said contract in any manner of implementation of contract, In any manner of the implementation of any terms and conditions of the said contract; the matter shall be referred to the Chairman & Managing Director, TCIL. within 90 days of occurring of dispute who may himself act as sole arbitrator or may name as sole arbitrator an officer of TCIL notwithstanding the fact that such officer has been directly or indirectly associated with this contract and the provisions of the Indian Arbitration Act shall apply to such arbitration. The tenderer expressly agrees that the arbitration proceedings shall be held at New Delhi. In case the tenderer wants to take the dispute to a court of law after arbitration award as aforesaid, it is clearly understood that only courts in Delhi shall have the jurisdiction.”

6. The statement of claims and also counter claims were filed by the parties. However, the ld. Arbitrator resigned on 5th February, 2012. Upon the said resignation, the Respondent unilaterally appointed a new Sole Arbitrator Ms. Shalini Sinha. From 2014 till 2023 she continued as the Sole Arbitrator. However, she also resigned on 14th December, 2023. The Respondent again unilaterally appointed Mr. Karnal Singh as the Sole Arbitrator on 2nd January, 2024. The matter is at the stage of evidence before the said Sole Arbitrator.

7. The present petitions have come to be filed seeking termination of the mandate of the said Sole Arbitrator and for appointment of an Independent Arbitrator.

8. The stand taken by the Petitioner is that since the latest appointment by the Respondent, which is unilateral, has been made after commencement of 2015 Amendment, the said unilateral appointment would not be permissible. He relies upon the following three decisions of the Supreme Court and the High Court.

● Ellora Paper Mills Limited v. State of Madhya Pradesh, (2022) 3 SCC 1 ● Progressive Infotech Private Limited v. Ircon International Ltd., 2023 SCC OnLine Del 550 ●