$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ARB.P.519/2018 Date of Decision : 11th December, 2018 SIMPLEX INFRASTRUCTURES LTD. ..... Petitioner Through: Mr.S.D. Singh, Mr.Jitender Singh and Mr.Puneet Kr. Jain, Advs. versus RAIL VIKAS NIGAM LIMITED ..... Respondent Through: Mr.Udit Seth and Mr.Anil Seth, Advs.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA NAVIN CHAWLA, J. (Oral)

1. This petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) has been filed by the petitioner seeking appointment of a nominee Arbitrator on behalf of the respondent and the Presiding Arbitrator for constitution of the Arbitral Tribunal to adjudicate the disputes that have arisen between the parties in relation to the Agreement dated 28.01.2011 by which the respondent has awarded the work of construction of Viaduct including the related works for 4.748 Km length excluding the station areas from Ch. (-) 1250.00 to Ch.4128.00 between Joka to Behala Chowrasta including the depot approach at Joka, in Joka - BBD bag corridor of Kolkata Metro Railway Line to the petitioner.

2. The Agreement contains an Arbitration Agreement between the parties in form of Clause 17.3 of General Conditions of Contract (GCC) which is reproduced hereinbelow:

“17.3 Any dispute in respect of which amicable settlement has not been reached arising between the Employer and the Domestic of Foreign Contractor related to any matter arising out of or connected with this contract, the disputes shall be settled in accordance with the Indian Arbitration Act, 1996 and any statutory modification or re-enactment thereof.

Further, it is agreed between the parties as under:

(i) Number of Arbitrators: The arbitral tribunal shall consist of 3 (three) arbitrators, (ii) Procedure for appointment of Arbitrators: The arbitrators shall be appointed as per following procedure:

(a) Employer will forward a panel of 5 names to the contractor and contractor will give his consent for any one name out of the panel to be appointed as one of the Arbitrators.

(b) Employer will decide the second Arbitrator out of the remaining four names in the panel as mentioned in Para (a) above.

(c) The third Arbitrator shall be chosen by the two Arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of failure of the two Arbitrators appointed by the parties to reach upon consensus within a period of 30 days from the appointment of the Arbitrators subsequently appointed, then, upon the request of either or both parties, the presiding Arbitrator shall be appointed by the Managing Director, Rail Vikas Nigam Limited, New Delhi.

(iii) Qualification and Experience of Arbitrators: The arbitrators to be appointed shall have minimum qualification and experience as under:

(a) One member of the tribunal shall be necessarily a working (not below the rank of SAG) or a retired officer (retired not below the rank of SAG, age not exceeding 70 years and in reasonably good mental and physical fitness) of Indian Railway Accounts Service having experience in financial matters related to construction contracts.

(b) One member shall be a technical person having degree in Engineering and may be working (not below the rank of SAG) or retired officer (retired not below the rank of SAG, age not exceeding 70 years and in reasonably good mental and physical fitness) of any Engineering service of Indian Railway or equivalent service in RVNL, and having knowledge and experience of the Railway working.

(c) The Presiding Arbitrator shall necessarily be a serving railway/RVNL officer and he shall have same minimum qualification and experience as specified above for either of the two arbitrators.

(d) Out of 3 Arbitrators not more than one shall be a retired officer.”

3. The disputes having arisen between the parties, the petitioner invoked the Arbitration Agreement vide its letter dated 26.12.2017. In the said letter, the petitioner inter-alia relying upon the judgment of the Supreme Court