Arb.P.521/2015 & Arb.P.522/2015

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 23^rd December, 2015

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ARB.P. 521/2015

HINDUSTAN CONSTRUCTION COMPANY LTD. ..... Petitioner

Through:

Mr. Rajeev Nayar, Sr. Adv. with

Mr.Dhirendra Negi, Mr. Divyam

Agarwal and Mr. Saurabh Seth, Advs.

versus

IRCON INTERNATIONAL LIMITED

..... Respondent

Through:

Mr. Dinesh Agnani, Sr. Adv. with

Ms. Leena Tuteja and Mr. Ishaan

Chawla, Advs.

AND

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ARB.P. 522/2015

HINDUSTAN CONSTRUCTION COMPANY LTD. ..... Petitioner

Through:

Mr. Rajeev Nayar, Sr. Adv. with

Mr.Dhirendra Negi, Mr. Divyam

Agarwal and Mr. Saurabh Seth, Advs.

versus

IRCON INTERNATIONAL LIMITED

..... Respondent

Through:

Mr. Dinesh Agnani, Sr. Adv. with

Ms. Leena Tuteja and Mr. Ishaan

Chawla, Advs.

CORAM:

HON'BLE MR. JUSTICE J.R. MIDHA

JUDGMENT

1.

The petitioner is seeking appointment of an arbitrator under Section

11(6) of the Arbitration and Conciliation Act, 1996.

Arb.P.521/2015 & Arb.P.522/2015

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2.

There are valid arbitration agreements between the parties contained

in clause 59.3 of the agreements dated 18^th February, 2006. The petitioner

validly invoked the arbitration vide notices dated 31^st July, 2015 to

adjudicate the disputes between the parties.

3.

Learned senior counsel for the respondent has opposed this petition as

premature on the ground that the agreements provide for conciliation

proceedings by a conciliator before reference of the same to the arbitrator. It

was submitted that the petitioner invoked the conciliation process but filed

this petition without waiting for the conclusion of the conciliation

proceedings and therefore, the petition was premature. It was submitted that

the sole conciliator was appointed on 28^th May, 2014 and vide notice dated

29^th May, 2014, the conciliator called upon both the parties to file their

claim/counter-claims. The petitioner did not file the claim before the

conciliator who issued a reminder dated 25^th March, 2015. Vide letter dated

9^th April, 2015, the petitioner sought further time to file the claim before the

conciliator. The petitioner filed the claim before the conciliator on 28^th

April, 2015. The respondent vide letter dated 26^th May, 2015 sought time to

respond to the petitioner’s claim. The respondent filed the response as well

as counter-claim before the conciliator on 14^th August, 2015. In the

meantime, vide letter dated 22^nd July, 2015, the petitioner notified that there

was failure of conciliation. The conciliator in the meantime vide letter dated

26^th August, 2015 fixed the first hearing of the conciliation on 14^th

September, 2015. However, the petitioner vide letter dated 9^th September,

2015 refused to appear before the conciliator and took a stand that

conciliation proceedings stood terminated. The conciliator therefore

terminated the conciliation proceedings vide order dated 17^th September,

2015. The respondent vide letter dated 26^th October, 2015 proposed the

names of the arbitrators from the nominated panel of northern Railways to

Arb.P.521/2015 & Arb.P.522/2015

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the Petitioner. The petitioner vide letter dated 30^th October 2015, opposed

the respondent’s communication on the ground that the respondent forfeited

its right in view of the filing of the present petition.

4.

Learned senior counsel for the petitioner urged at the time of the

hearing that the agreements between the parties provide for sixty days for

conclusion of the conciliation proceedings. Vide letter dated 22^nd July,

2015, the petitioner intimated the conciliator that more than 80 days had

passed without any steps having been taken in respect of the conciliation and

therefore, in terms of the contract, it was treating the conciliation as having

failed. The petitioner thereafter invoked the arbitration on 31^st July, 2015

calling upon the Managing Director of the respondent to provide a panel of

names from wh