IN THE HIGH COURT OF JUDICATURE AT PATNA Request Case No.196 of 2017 ======================================================

Hindustan Construction Company Ltd., a Company Registered under the Companies Act, 1956 having its Registered office at HINCON House, Lal Bahadur Shastri Marg, Vikhroli (West), Mumbai- 400083 through its authorized representative, Sri Rajendra Kumar Mahajan, S/o- Late Madhukar Mahajan, R/o- B/303, Lok Manya Society, Veer Savarkar Marg, Thane (W)-

400602 ... ... Petitioner/s Versus Kanti Bijlee Utpadan Nigam Ltd. Through its Chairman cum Managing Director having its registered office at: NTPC Bhawan, Core-7, SCOPE Complex-7, Industrial Area, Lodi Road, New Delhi- 10003 and its Branch Office at Vidyut Bhawan, Bailey Road, Patna, P.S. Kotwali, Pin- 800001.

... ... Respondent/s ======================================================

Appearance :

For the Petitioner/s : Mr. Mrigank Mauli, Advocate Mr. Prince Kumar Mishra, Advocate For the Respondent/s : Mr. Anil Kumar Sinha, Advocate Mr. Abhimanyu Deo, Advocate ======================================================

CORAM: HONOURABLE THE CHIEF JUSTICE

CAV JUDGMENT

Date : 20-12-2017 This is an application filed by the applicant invoking the jurisdiction of this Court under Section 14 of the Arbitration and Conciliation Act, 1996 read with Sections 11(6) and 12 thereof seeking termination of the mandate of an Arbitrator already appointed and proceeding to adjudicate the dispute, on the ground that the Arbitrator becomes de jure unable to perform his function in view of Section 14 and the amendment made by the Arbitration and Conciliation Act, 2015 which came into force vide notification issued on 01.01.2016 with effect from 23^rd of October, 2015.

It is stated that in view of the prohibition created under Section 12(5), the Arbitrator’s mandate should be terminated and an independent Arbitrator appointed. This in sum and substance is the grievance of the petitioner and the same is based on the fact that under Clause 56 of the general conditions of the contract, all amendments in the rules and regulations and the statute will apply to the contract in question.

Petitioner company was awarded a contract for construction of “Main Plant, Civil Works, Offsite Civil Works, Chimney, Chimney Elevator Package etc. of the Muzaffarpur Thermal Power Plant- Stage-II, located at Kanti, Bihar. The contract was awarded vide Annexure-P/1 on 04.02.2011 and the formal contract agreement was executed on 11.03.2011 vide Annexure-P/2 and it is an admitted position that the contract contains an arbitration agreement. The arbitration is by a sole Arbitrator who happens to be the nominee of the company and Clause 56 of the general conditions of the contract, as is contained in the letter (Annexure-P/5 and P/6) dated 19.02.2015 speaks about the contract being subject to the provisions of all amendments made from time to time in the statute. In fact Clause 56 available at Page 110 of the Paper Book stipulates that any statutory modification or re-enactment in the Arbitration Act and the rules framed thereunder from time to time shall apply to the arbitration proceeding under this clause. It, is, by emphasizing on this clause argued that now the Arbitrator who is nominated by the company cannot proceed and an independent and impartial Arbitrator should be appointed.

Be it as it may be, the fact remains that in the execution of the agreement in question, as certain disputes arose, the Chief Executive Officer of the respondent Company was appointed as sole Arbitrator to adjudicate the dispute between the parties. Records indicate that the Arbitrator proceeded with the arbitration proceedings, first hearing of the proceedings commenced on 18.03.2015, as is evident from Annexure-P/7. The petitioner filed their statement of claim before the Arbitrator on 26.05.2015 vide Annexure- P/8. The original Arbitrator one Sri Tufani Ram was replaced by Sri Rajiv Kumar Sinha, the new Executive Officer. The new Arbitrat