Neutral Citation No. - 2023:AHC:176085

Reserved on: 25.8.2023

Delivered on: 6.9.2023

Court No. - 65

Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. -

161 of 2022

Applicant :- V.K. Gupta And Associates

Opposite Party :- Superintending Engineer

Counsel for Applicant :- Satya Prakash,Apoorv Tiwari,Manoj

Kumar Yadav,Raj Kumar Yadav,Sr. Advocate

Counsel for Opposite Party :- C.S.C.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Dinesh Gupta along with Mr. Satya Prakash, the

learned counsel for applicant and the learned Standing Counsel

representing opposite party.

2. Perused the record.

3. This application under Section 11(4) of the Arbitration and

Conciliation Act, 1996 has been filed by applicant for a direction

that an Arbitrator be appointed to fill the vacancy in the Arbitral

Tribunal (comprising of three Arbitrators) which was already

continued by opposite party-1 itself or in the alternative appoint a

sole arbitrator, to resolve the dispute between the parties.

4. Record shows that parties entered into an agreement, vide

Contract Bond No. 08/SE-SRE/2010-11, dated 13.09.2008 for

continuation of a bridge over the Yamuna River at Clause 25.3 of

the General Condition of Contract contains an arbitration clause

for redressal of the dispute arising out of the contract entered into

by the parties. For ready reference, Clause 25.3 of the agreement is

reproduced hereinunder:-

"ARBITRATION (GCC Clause 25.3)

The procedure for arbitration will be as follows:

25.3 (a) In case of Dispute or difference arising between the Employer and

a domestic contractor relating to any matter arising out of or connected

with this agreement, such disputes or difference shall be settled in

accordance with the Arbitration and Conciliation Act, 1996. The parties

shall make efforts to agree on a sole arbitrator and only if such an attempt

does not succeed and the Arbitral Tribunal consisting of 3 arbitrators one

each to be appointed by the Employer and the Contractor and the third

Arbitrator to be chosen by the two Arbitrators so appointed by the Parties to

act as Presiding Arbitrator shall be considered. In case of failure of the two

arbitrators appointed by the parties to reach upon a consensus within a

period of 30 days from the appointment of the arbitrator appointed

subsequently, the Presiding Arbitrator shall be appointed by the Council,

Indian Roads Congress

(b) The Arbitral Tribunal shall consist of three Arbitrators one each to be

appointed by the Employer and the Contractor. The third Arbitrator shall be

chosen by the two Arbitrators so appointed by the Parties, and shall act a

presiding arbitrator. In case of failure of the two arbitrators appointed by

the parties to reach upon a consensus within a period of 30 days from the

appointment of the arbitrator appointed subsequently, the Presiding

arbitrator shall be appointed by the Council, Indian Roads Congress.

(c) If one of the parties fails to appoint its arbitrator in pursuance of sub-

clause (a) and (b) above within 30 days after receipt of the notice of the

appointment of its arbitrator by the other party, then the * Council, Indian

Roads Congress shall appoint the arbitrator. A certified copy of the order of

the Council, Indian Roads Congress, making such an appointment shall be

furnished to each of the parties.

(d) Arbitration proceedings shall be heid in India, and the language of the

arbitration proceedings and that of all documents and communications

between the parties shall be English.

(e) The decision of the majority of arbitrators shall be final and binding

upon both parties. The cost and expenses of Arbitration proceedings will be

paid as determined by the arbitral tribunal. However, the expenses incurred

by each party in connection with the preparation, presentation, etc. of its

proceedings as also the fees and expenses paid to the arbitrator appointed

by such party or on its behalf shall be borne by each party itself.

(f) Performance un