w w w . L a w y e r S e r v i c e s . i n



M/s Simplex Projects Ltd., through its Director, Kolkata v/s The State of Manipur, through its Chief Secretary, Imphal & Others


Company & Directors' Information:- C AND C PROJECTS LIMITED [Active] CIN = U74999HR2007PLC036644

Company & Directors' Information:- Y K M PROJECTS PRIVATE LIMITED [Active] CIN = U40109TG2008PTC057263

Company & Directors' Information:- SIMPLEX PROJECTS LTD [Active] CIN = L45201WB1990PLC050101

Company & Directors' Information:- T G R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200KA2012PTC062702

Company & Directors' Information:- S G PROJECTS LIMITED [Active] CIN = U65999WB1990PLC049684

Company & Directors' Information:- B C C PROJECTS PVT LTD [Active] CIN = U74899DL2001PTC112102

Company & Directors' Information:- J K S PROJECTS LIMITED [Active] CIN = U45400WB2011PLC157565

Company & Directors' Information:- D M P PROJECTS PVT LTD [Active] CIN = U27109WB2006PTC107513

Company & Directors' Information:- T & T PROJECTS LIMITED [Active] CIN = U45201AS2008PLC008641

Company & Directors' Information:- W AND W PROJECTS PRIVATE LIMITED [Active] CIN = U65910DL1989PTC036754

Company & Directors' Information:- E M C PROJECTS PVT LTD [Active] CIN = U29248WB1964PTC026261

Company & Directors' Information:- H AND V PROJECTS PRIVATE LIMITED [Active] CIN = U72400DL2011PTC220047

Company & Directors' Information:- M A PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2005PTC135093

Company & Directors' Information:- S. V. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70100AP1998PTC029024

Company & Directors' Information:- M V PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45202KA2008PTC045272

Company & Directors' Information:- S V S PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45200AP2015PTC096787

Company & Directors' Information:- A T E PROJECTS PRIVATE LIMITED [Active] CIN = U74999DL1999PTC102246

Company & Directors' Information:- U W T PROJECTS LIMITED [Active] CIN = U45200AP2004PLC043198

Company & Directors' Information:- J J PROJECTS PVT LTD [Active] CIN = U24231WB1986PTC040246

Company & Directors' Information:- Z H PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2012PTC184307

Company & Directors' Information:- K & J PROJECTS PRIVATE LIMITED [Active] CIN = U45203MH2004PTC150165

Company & Directors' Information:- T & I PROJECTS LTD [Active] CIN = L29130WB1984PLC038232

Company & Directors' Information:- B 2 R PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2013PTC189971

Company & Directors' Information:- C M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC130580

Company & Directors' Information:- N G PROJECTS LIMITED [Active] CIN = U45201GJ2003PLC042152

Company & Directors' Information:- E AND C PROJECTS PRIVATE LIMITED [Active] CIN = U29150DL2002PTC115297

Company & Directors' Information:- B. D. R. PROJECTS PRIVATE LIMITED [Active] CIN = U45202TG1998PTC028780

Company & Directors' Information:- J T L PROJECTS PRIVATE LIMITED [Active] CIN = U70101KL2006PTC019439

Company & Directors' Information:- V AND S PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL1996PTC079487

Company & Directors' Information:- L S R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U07010KA2005PTC036041

Company & Directors' Information:- V R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400AP2007PTC054901

Company & Directors' Information:- D C R PROJECTS PRIVATE LIMITED [Active] CIN = U45209TG2007PTC056307

Company & Directors' Information:- R. R. PROJECTS PVT LTD [Active] CIN = U45200TG1982PTC003711

Company & Directors' Information:- S H PROJECTS PRIVATE LIMITED [Active] CIN = U74996DL2006PTC149971

Company & Directors' Information:- S R PROJECTS INDIA PVT LTD [Active] CIN = U45207WB1981PTC033286

Company & Directors' Information:- L E PROJECTS PRIVATE LIMITED [Active] CIN = U45303WB2005PTC102555

Company & Directors' Information:- M. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC131902

Company & Directors' Information:- J V PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069037

Company & Directors' Information:- B N PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2009PTC058067

Company & Directors' Information:- J P PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2011PTC165990

Company & Directors' Information:- R K PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC043660

Company & Directors' Information:- A B PROJECTS PRIVATE LIMITED [Active] CIN = U45200MH2004PTC149404

Company & Directors' Information:- A K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG1996PTC023179

Company & Directors' Information:- S N M PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2010PTC040243

Company & Directors' Information:- J AND H PROJECTS PRIVATE LIMITED [Active] CIN = U45200GJ2013PTC074010

Company & Directors' Information:- N S PROJECTS PRIVATE LIMITED [Active] CIN = U70101WB2007PTC117882

Company & Directors' Information:- H S PROJECTS PRIVATE LIMITED [Active] CIN = U45208DL2006PTC153706

Company & Directors' Information:- N M PROJECTS PRIVATE LIMITED [Active] CIN = U29219DL2009PTC186728

Company & Directors' Information:- K. V. PROJECTS PRIVATE LIMITED [Active] CIN = U70102WB2012PTC188439

Company & Directors' Information:- K R S PROJECTS PRIVATE LIMITED [Active] CIN = U70102AP2012PTC082232

Company & Directors' Information:- B S C PROJECTS PRIVATE LIMITED [Active] CIN = U45200DL2011PTC227768

Company & Directors' Information:- J K PROJECTS PRIVATE LIMITED [Active] CIN = U45203GJ2001PTC039576

Company & Directors' Information:- F C C PROJECTS PRIVATE LIMITED [Active] CIN = U29248UP1982PTC005786

Company & Directors' Information:- S N PROJECTS LIMITED [Active] CIN = U85110KA1996PLC021040

Company & Directors' Information:- B. D. PROJECTS PRIVATE LIMITED [Amalgamated] CIN = U45400WB2010PTC147620

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U29100DL2010PTC209136

Company & Directors' Information:- C & I PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2010PTC209136

Company & Directors' Information:- C B PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB1997PTC085237

Company & Directors' Information:- G G PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL1998PTC091501

Company & Directors' Information:- V M G PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45400WB2011PTC164117

Company & Directors' Information:- M. L. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC151513

Company & Directors' Information:- R N D PROJECTS PRIVATE LIMITED [Active] CIN = U70102DL1996PTC080051

Company & Directors' Information:- M. K. N. PROJECTS PRIVATE LIMITED [Active] CIN = U70101DL2009PTC196755

Company & Directors' Information:- M B R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45300KA2009PTC049005

Company & Directors' Information:- G S P PROJECTS PRIVATE LIMITED [Active] CIN = U45201WB1992PTC057116

Company & Directors' Information:- K P S PROJECTS PRIVATE LIMITED [Active] CIN = U70102TG2005PTC046280

Company & Directors' Information:- E AND V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102TG2004PTC042622

Company & Directors' Information:- T M R PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2010ULT211007

Company & Directors' Information:- S C T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2008PTC184418

Company & Directors' Information:- P A PROJECTS PRIVATE LIMITED [Active] CIN = U45208WB1997PTC083907

Company & Directors' Information:- N K D PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2008PTC128819

Company & Directors' Information:- A I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203WB2000PTC091229

Company & Directors' Information:- P N PROJECTS PRIVATE LIMITED [Active] CIN = U45202DL2016PTC289494

Company & Directors' Information:- V AND M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2005PTC139731

Company & Directors' Information:- K K PROJECTS PVT LTD [Strike Off] CIN = U70200WB1995PTC073058

Company & Directors' Information:- S L PROJECTS PRIVATE LIMITED [Active] CIN = U45400AN2009PTC000109

Company & Directors' Information:- PROJECTS PVT LTD [Strike Off] CIN = U45201WB1951PTC019759

Company & Directors' Information:- V K M PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2011PTC045725

Company & Directors' Information:- K P PROJECTS PVT LTD [Active] CIN = U70101WB1996PTC077397

Company & Directors' Information:- C R PROJECTS PRIVATE LIMITED [Active] CIN = U45400PB2009PTC032572

Company & Directors' Information:- N D B K PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U27100PB2012PTC036987

Company & Directors' Information:- N P R PROJECTS INDIA PRIVATE LIMITED [Strike Off] CIN = U45400TN2012PTC086360

Company & Directors' Information:- G P N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U18101TZ2006PTC012749

Company & Directors' Information:- D H V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2005PTC045988

Company & Directors' Information:- V K R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC046370

Company & Directors' Information:- I N C PROJECTS PRIVATE LIMITED [Active] CIN = U70109WB2005PTC101620

Company & Directors' Information:- J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U45400WB2009PTC136510

Company & Directors' Information:- D J PROJECTS PRIVATE LIMITED [Active] CIN = U15201DL2005PTC134979

Company & Directors' Information:- M S C K PROJECTS PRIVATE LIMITED [Converted to LLP] CIN = U70101DL2005PTC135407

Company & Directors' Information:- B R T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45203TG1996PTC025021

Company & Directors' Information:- T AND M PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201KA2008PTC045199

Company & Directors' Information:- A C G PROJECTS PRIVATE LIMITED [Active] CIN = U45201UP1999PTC024162

Company & Directors' Information:- C K B PROJECTS INDIA LIMITED [Strike Off] CIN = U70102WB2012PLC188740

Company & Directors' Information:- N E PROJECTS LTD [Strike Off] CIN = U16009AS1999PLC005873

Company & Directors' Information:- D R PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109612

Company & Directors' Information:- I J PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70102KA2009PTC049320

Company & Directors' Information:- G C N PROJECTS PRIVATE LIMITED [Active] CIN = U45200KA2011PTC061371

Company & Directors' Information:- L N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45200TG2004PTC043064

Company & Directors' Information:- H B PROJECTS PVT LTD [Amalgamated] CIN = U45201WB1993PTC058846

Company & Directors' Information:- I. T. G PROJECTS PRIVATE LIMITED [Active] CIN = U74899DL1994PTC063342

Company & Directors' Information:- P. S. PROJECTS PRIVATE LIMITED [Converted to LLP and Dissolved] CIN = U70109WB2011PTC170655

Company & Directors' Information:- W M I KOLKATA PVT LTD [Strike Off] CIN = U74900WB1966PTC026798

Company & Directors' Information:- A R N PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45202MH2010PTC199122

Company & Directors' Information:- H. K. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400WB2007PTC116467

Company & Directors' Information:- D M C PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140WB2005PTC105972

Company & Directors' Information:- S P PROJECTS (INDIA) PRIVATE LIMITED [Active] CIN = U45400DL2010PTC203910

Company & Directors' Information:- J R PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109HR2012PTC045119

Company & Directors' Information:- C N R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45201KA2007PTC041355

Company & Directors' Information:- J Y R PROJECTS PRIVATE LIMITED [Active] CIN = U70109TG2021PTC153917

Company & Directors' Information:- S C N PROJECTS PRIVATE LIMITED [Active] CIN = U70109TG2021PTC155544

Company & Directors' Information:- A J PROJECTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U45201MH2006PTC164622

Company & Directors' Information:- J M PROJECTS PRIVATE LIMITED [Active] CIN = U45200MP2007PTC019336

Company & Directors' Information:- L S S PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2013PTC059508

Company & Directors' Information:- A TO Z PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70101DL1995PTC069527

Company & Directors' Information:- G I T T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201TG2006PTC051193

Company & Directors' Information:- Z & I PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45309TN2007PTC064972

Company & Directors' Information:- B. G. PROJECTS PRIVATE LIMITED [Active] CIN = U45400MH2012PTC231270

Company & Directors' Information:- P S R PROJECTS INDIA PRIVATE LIMITED [Active] CIN = U45400TG2015PTC101191

Company & Directors' Information:- E & E PROJECTS PRIVATE LIMITED [Active] CIN = U45400UP2015PTC075033

Company & Directors' Information:- B B R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045165

Company & Directors' Information:- M V R PROJECTS PRIVATE LIMITED [Active] CIN = U45200TG2005PTC045166

Company & Directors' Information:- L V S PROJECTS PRIVATE LIMITED [Under Process of Striking Off] CIN = U45200TG2010PTC068286

Company & Directors' Information:- R N V PROJECTS PRIVATE LIMITED [Active] CIN = U70102UP2011PTC044240

Company & Directors' Information:- K L PROJECTS PRIVATE LIMITED [Active] CIN = U27104DL2003PTC119655

Company & Directors' Information:- K S M PROJECTS PRIVATE LIMITED [Active] CIN = U45400DL2009PTC194824

Company & Directors' Information:- 3 G PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45400DL2015PTC276736

Company & Directors' Information:- I S R PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2005PTC138210

Company & Directors' Information:- L V PROJECTS PRIVATE LIMITED [Active] CIN = U74140DL2014PTC272838

Company & Directors' Information:- M K PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45201DL2002PTC117787

Company & Directors' Information:- B V M PROJECTS PRIVATE LIMITED [Active] CIN = U45201DL2004PTC131352

Company & Directors' Information:- K. J. S. PROJECTS PRIVATE LIMITED [Active] CIN = U70109DL2006PTC152898

Company & Directors' Information:- V N R PROJECTS PRIVATE LIMITED. [Active] CIN = U45400AP2008PTC060896

Company & Directors' Information:- C R R PROJECTS PRIVATE LIMITED [Active] CIN = U45400AP2015PTC097217

Company & Directors' Information:- A R P PROJECTS PRIVATE LIMITED [Active] CIN = U45200HR2012PTC044979

Company & Directors' Information:- H V PROJECTS PVT LTD [Active] CIN = U45202HR1997PTC033617

Company & Directors' Information:- V & V PROJECTS PRIVATE LIMITED [Strike Off] CIN = U70109KA2005PTC037578

Company & Directors' Information:- M S S PROJECTS PRIVATE LIMITED [Strike Off] CIN = U45202KA2005PTC037905

Company & Directors' Information:- C AND T PROJECTS PRIVATE LIMITED [Strike Off] CIN = U74140GJ2009PTC057480

Company & Directors' Information:- A AND B PROJECTS PRIVATE LIMITED [Active] CIN = U45201GJ2007PTC051077

Company & Directors' Information:- B. P. S. R. PROJECTS PRIVATE LIMITED [Active] CIN = U70109RJ2018PTC063238

Company & Directors' Information:- R M S PROJECTS PVT LTD [Strike Off] CIN = U74210DL1975PTC007946

Company & Directors' Information:- A. R. PROJECTS PRIVATE LIMITED [Strike Off] CIN = U40200DL2007PTC161559

Company & Directors' Information:- SIMPLEX (INDIA) LIMITED [Dissolved] CIN = U99999MH1946PTC005414

    Arbitration Petition (J2) No. 5 of 2020 with MC (Arb.P. (J2)) No. 2 of 2021

    Decided On, 23 September 2021

    At, High Court of Manipur

    By, THE HONOURABLE CHIEF JUSTICE MR. SANJAY KUMAR

    For the Petitioner: S.D. Singh, T. Momo Singh, Advocates. For the Respondents: Lenin Hijam, Addl. AG, Tejpriya, Advocate.



Judgment Text

CAV Order

1. Heard Mr.S.D.Singh, learned counsel, assisted by Mr. Tayenjam Momo Singh, learned counsel, for the petitioner company; and Mr. Lenin Hijam, learned Additional Advocate General, Manipur, assisted by Ms. Tejpriya, learned counsel, appearing for the respondents.

2. This petition was filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for brevity, ‘the Act of 1996’), read with Section 10 of the Commercial Courts Act, 2015, seeking appointment of an independent, impartial and competent arbitrator to decide the petitioner company’s disputes with the State of Manipur and its Public Works Department.

3. The petitioner company entered into Contract Agreement No.EE/BD-I/Agrt/2010-11/26 dated 18.10.2010 with the Government of Manipur for construction of the Capital Complex (Civil Secretariat Component) at Mantripukhri, Imphal.

Clause 38(i) of the said Agreement is titled ‘Settlement of Disputes and Arbitration’. It provided that if the contractor, viz., the petitioner company, disputed any drawing, record or decision given in writing by the Engineer-in-charge on any matter in connection with or arising out of the contract, it should, within fifteen days, request the Superintending Engineer, in writing, for a written decision. The Superintending Engineer, in turn, was to give his decision within a month from the date of receipt of the contractor’s letter. However, if the Superintending Engineer failed to do so within that time or if the contractor was dissatisfied with his decision, the contractor could appeal to the Chief Engineer within fifteen days of the receipt of the Superintending Engineer’s decision. The Chief Engineer was required to afford an opportunity of hearing to the contractor, if desired, and then give his decision within thirty days of the receipt of the contractor’s appeal. If the contractor still remained dissatisfied, he was given thirty days from the date of receipt of the decision to give notice to the Chief Engineer for appointment of an arbitrator. Failing such action on his part, the decision of the Chief Engineer was to be final, binding and conclusive and not referable to adjudication by an arbitrator.

Clause 38 (ii) stated to the effect that the dispute or difference was to be referred for adjudication through arbitration by a sole arbitrator appointed by the Chief Engineer, Public Works Department, Manipur, or if there be no Chief Engineer, the Administrative Head, i.e., the Works Department, Government of Manipur. It provided that no person other than the person appointed by the Chief Engineer, Public Works Department, Manipur, or the Works Department, Government of Manipur, should act as an arbitrator. It further provided that the arbitration was to be conducted in accordance with the provisions of the Act of 1996 or any statutory modifications or re-enactment thereof and that the rules made thereunder for the time being in force would apply to the arbitration proceedings under this clause.

4. Disputes having arisen between the parties in relation to execution of the work, the Contract Agreement dated 18.10.2010 was terminated by the Executive Engineer, Building Division No.1, Public Works Department, Manipur, under letter dated 02.11.2019. The petitioner company addressed letter dated 15.01.2020 to the Executive Engineer, Building Division No.1, Public Works Department, requesting that it be allowed to continue with the work and complete it within a time frame but in the event the department did not agree to do so, it’s claims should be settled and it should be compensated to the tune of `21,655.23 lakh. Details of the claims were set out under 20 heads therein. Claiming that there was no response to this communication, the petitioner company addressed letter dated 11.03.2020 to the Superintending Engineer-II, Building Division No.1, Public Works Department, Manipur, reiterating the contents and claims as per its earlier letter. However, as this letter also failed to evoke a reply, the petitioner company addressed letter dated 22.04.2020 to the Chief Engineer (Building), Public Works Department, Government of Manipur, on the same lines. Finally, the petitioner company addressed letter dated 18.06.2020 to the Chief Engineer, Public Works Department, Government of Manipur, expressing an intention to get the disputes settled through arbitration. The statement of claims and the amounts claimed were set out in an appendix attached thereto, quantifying the total claims of the petitioner company at `21,950.38 lakh. Asserting that the Chief Engineer remained unmoved, despite the binding arbitration clause in the Agreement, the petitioner company filed this petition.

5. The Executive Engineer, Building Division No.1, Public Works Department, Government of Manipur, filed a counter on 03.03.2021 on behalf of the Public Works Department of the State and himself. Therein, he stated that the petitioner company had surrendered itself to the writ jurisdiction of this Court by filing W.P(C) No.32 of 2020 and that final judgment and order dated 06.03.2020 was passed therein by a learned Judge of this Court. He further stated that in terms of the order passed in W.P(C) No.32 of 2020 and the Division Bench order dated 13.01.2021 in WA No.39 of 2020 arising therefrom, at the behest of the State and its Public Works Department, final joint measurements were undertaken and all the disputes between the parties stood settled. He claimed that this petition was barred by the principle of res judicata and sought its dismissal.

6. In its rejoinder dated 15.03.2021, the petitioner company asserted that the Public Works Department of the State and its Executive Engineer had earlier served upon it a copy of their preliminary affidavit dated 27.02.2021 admitting the existence of the arbitration clause in the Contract Agreement and seeking leave of the Court to appoint an arbitrator within a time frame. The petitioner company contended that the Public Works Department and its Executive Engineer could not resile from their earlier stance, though the preliminary affidavit was not filed before the Court. As regards the contentions raised by the Public Works Department apropos W.P(C) No.32 of 2020 and the order passed therein, the petitioner company claimed that liberty had been reserved therein for it to invoke the arbitration clause and seek redressal of its grievances, as provided under the contract, including the claim for compensation or damages. The petitioner company asserted that the principle of res judicata was not applicable to the case and therefore, the stand taken by the Executive Engineer, Public Works Department, was untenable.

7. Thereafter, the respondents herein filed M.C.{Arb.P.(J2)} No.2 of 2021 for leave to raise a preliminary objection/issue as to the maintainability of this arbitration petition. Therein, they again contended to the effect that the petitioner company had forfeited its right to take recourse to the arbitration clause as it had opted to file a writ petition before this Court, viz., W.P(C) No.32 of 2020. They then referred to the judgment and order dated 06.03.2020 passed in the said writ petition and the judgment and order dated 13.01.2021 passed in Writ Appeal No.39 of 2020 filed by them. According to them, joint measurements of the executed works had been undertaken, resolving all disputes, and a final settlement had come about after such joint measurements, pursuant to the directions of this Court.

8. Given the aforestated rival contentions of the parties, it may be noted that this Court plays a limited role while exercising power under Section 11 of the Act of 1996. More so, after insertion of Section 11(6-A) in the Act of 1996 with retrospective effect from 23.10.2015, vide The Arbitration and Conciliation Act (Amendment) Act, 2015 (3 of 2016). This provision makes it clear that this Court, while considering an application under Sections 11(4) or 11(5) or 11(6), shall, notwithstanding any judgment, decree or order of any Court, confine itself to examination of the existence of an arbitration agreement. Therefore, existence of an arbitrable dispute and consequently, the issue of maintainability of this arbitration petition, cannot be looked into by this Court while exercising power under Section 11 of the Act of 1996.

Significantly, in Uttarakhand Purv Sainik Kalyan Nigam Limited vs. Northern Coal Field Limited [(2020) 2 SCC 455], the Supreme Court made it clear that after insertion of Section 11(6-A) in the Act of 1996, the Court dealing with an application under Section 11(6) of the Act of 1996 must confine itself only to examination of the existence of an arbitration agreement and no more.

Pertinent to note, Section 16 of the Act of 1996 confers power and competence upon the arbitral tribunal itself to rule on its own jurisdiction. Section 16(1) of the Act of 1996 goes to the extent of stating that the arbitral tribunal is empowered to rule not only on its own jurisdiction but also on any objection with respect to the very existence or validity of the arbitration agreement. In the light of the statutory scheme obtaining under the Act of 1996, the objections sought to be raised by the State of Manipur and its Public Works Department necessarily have to be raised before the arbitral tribunal only and not before this Court at this stage.

9. Further, though Clause No.38 in the Contract Agreement dated 18.10.2010 reserved the right of appointing an arbitrator only to the Chief Engineer, the same can have no effect in the light of the amendment of the Act of 1996. Notably, Clause No.38 also provided that the arbitration was to be governed by the Act of 1996 and the amendments made thereto. Section 12(5) was inserted in the Act of 1996 by way of the Amendment Act 3 of 2016 and it provides that, notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator. Category 5 of the Seventh Schedule to the Act of 1996 bars a Manager, Director or part of the management or a person, who has a similar controlling influence, from being an arbitrator. Therefore, the arbitrator can no longer be an internal arbitrator from within the organization or someone who has a direct link with it or with the matter in dispute.

10. The question would then arise as to whether an external arbitrator could be unilaterally appointed by one of the parties to the dispute. The State of Manipur and its Public Works Department initially asserted this right by way of their preliminary affidavit dated 27.02.2021. However, such a claim cannot be accepted in the light of the edict of the Supreme Court in Perkins Eastman Architects DPC and another vs. HSCC (India) Limited, [AIR 2020 SC 59]. Therein, the Supreme Court held to the effect that if the head of the institution was incompetent to act as an arbitrator after the amendment of the Act of 1996 by Amendment Act 3 of 2016, a similar invalidity would arise even in a case where the head of the institution is authorized to appoint another person of his choice or discretion as an arbitrator. Reliance was placed on the earlier decision of the Supreme Court in TRF Limited vs. Energo Engineering Projects Limited [(2017) 8 SCC 377]. In the light of the above settled legal position, it is no longer open to the Chief Engineer of the Public Works Department of the State to assert any right to

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unilaterally appoint an arbitrator. 11. On the above analysis, this Court holds that it cannot go into the issues urged by the State of Manipur and its Public Works Department as to the existence of an arbitrable dispute as such an issue would be solely within the domain of the arbitral tribunal under Section 16 of the Act of 1996. Making this position clear and leaving all issues open, this arbitration petition is ordered. Hon’ble Mr. Justice Madan B Lokur (Retired), Judge, Supreme Court of India, now residing at A-26, First Floor, Gulmohar Park, New Delhi – 110049, is appointed as the sole arbitrator to resolve the disputes, differences and claims between the parties, arising out of and/or relating to the Contract Agreement dated 18.10.2010, as per the provisions and procedures of the Act of 1996. Registry is directed to forthwith communicate a copy of this order to Hon’ble Mr.Justice Madan B Lokur (Retired), Judge, Supreme Court of India, now residing at A-26, First Floor, Gulmohar Park, New Delhi – 110049. In the light of this final order, no separate order requires to be passed in the miscellaneous case, which shall stand disposed of. A copy of this order shall be communicated online/through WhatsApp to the learned counsel.
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