(Prayer: Arbitration Original Petition has been filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996, to appoint a sole Arbitrator to adjudicate upon the disputes between the petitioner and the respondent arising out of the Contract Agreement dated 28/3/2016.)
1. This Original Petition has been filed to appoint a sole Arbitrator, to adjudicate upon the disputes between the petitioner and respondent, arising out of the Contract Agreement, dated 28/3/2016.
2. Brief facts of this Arbitration Original Petition is as follows:-
Parties had executed the Contract Agreement, dated 28/3/2016, for Construction of Buildings 302, 306, 307 and allied structures including Civil, Electrical and Mechanical works for FRFCF, at Kalpakkam, to crystallise the terms and conditions for the award of the subject works to the petitioner. During the course of performance of the subject works, there were numerous breaches on the part of the respondent. Hence there arose a dispute between the parties which was sought to be resolved by the petitioner, in accordance with the dispute resolution mechanism prescribed, under the terms of the Agreement read with the tender documents.
3. Clause 25 of the General Conditions of Contract read with Erratum of the Prebid Clarifications S.No.11, prescribes the procedure for resolution of disputes that may arise during the course of the project. The Dispute Redressal Committee has failed to render its decision, within 90 days, from the date on which the petitioner referred its claims to the Dispute Redressal Committee's consideration.
4. Being dissatisfied with the Dispute Redressal Committee's rejection, the petitioner had issued a Notice of Arbitration, dated 9/4/2021, to the respondent, for appointment of a sole Arbitrator, wherein the petitioner had suggested the names of two independent persons to the respondent. Since the respondent refused to appoint the sole Arbitrator from the two options proposed by the petitioner, the petitioner has come forward with the instant Arbitration Original Petition.
5. Heard Mr.Anirudh Krishnan, learned counsel for the petitioner and Mr.G.Ilangovan, learned Senior Central Government Standing Counsel for the respondent.
6. The learned counsel appearing for the petitioner submitted that the respondent took the stand as per Clause 25 of General Conditions of Contract and S.No.11 of the Erratum to the pre-bid clarification, no person other than a person appointed by Director, IGCAR/Secretary, DAE should act as Arbitrator and the judgment of the said Arbitrator shall be final, binding and conclusive for both of the parties. Hence, the very appointment by the second respondent is not a fair procedure, as per the judgment of PERKINS EASTMAN ARCHITECTS DPC & ANR Vs. HSCC (INDIA) LTD (2019 SCC ONLINE SC 1517).
7. The contract involves technical aspect. When the Court posed a question as to the nomination of Three Member Arbitral Tribunal, both sides had agreed to nominate one person on their side and the Court can appoint one Presiding Officer.
8. The learned counsel appearing for the petitioner has suggested the name of Mr.S.Soundararajan, and the learned counsel appearing for the respondent has suggested the name of Mr.S.Sivaraman, as Members of Three Member Arbitral Tribunal.
9. Accordingly, this original petition is ordered as follows:
(i). Mr.S.Soundararajan, Door No.15, 12th Cross Street, Dhandeeswar Nagar, Velachery, Chennai 600 042 (Mobile No.9952917390) and Mr.S.Sivaraman, 5/8 Second Street, Marackayar Nagar, Neelankarai, Chennai 600 115 (Mob No.9790039921 and 9080989485) are appointed as Members of Three Member Arbitral Tribunal.
(ii). Mr.Justice K.Kannan, Former Judge, Punjab and Haryana High Court, 3/11, Lakshmi Colony, North Cresent Road, T.Nagar, Chennai 600 017 (Mobile No.9780008145) is appointed as a Presiding Arbitrator to enter upon reference and adjudicate the matter.
(iii). The Arbitral Tribunal appointed herein, shall after issuing notice to the parties and upon hearing them, pass an award as expediti
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ously as possible, preferably within a period of six months from the date of receipt of the Order. (iv) The Members of the Arbitral Tribunal and learned Presiding Arbitrator appointed herein shall be paid fees and other incidental charges, fixed by them, as per the Schedule of the Act and the same shall be borne by the parties equally. 10. This Arbitration Original Petition is ordered accordingly, leaving the parties to bear their own costs.