IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb. Case No. 98 of 2010 Date of decision: 15.9.2011 M/s S.P.Singla Constructions (P) Ltd …..petitioner vs. State of Punjab …..respondent CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Animesh Sharma, Advocate for the petitioner. Mr. A.P.S. Maan, Addl. A.G., Punjab for respondent. HEMANT GUPTA, J Present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’) is in respect of the disputes arising out of an agreement dated 17.11.2006. Vide the aforesaid agreement, petitioner has been allotted the work for construction of approaches to road over bridge (excluding railway portion) (i) four lane approaches on level crossing No. 139/3 on Bhucho-Bhatinda Cantt. railway line at Bhatinda together with 10.50 meter carriage way arm on NH 64(ext.) (ii) on level crossing No. 242/2 on Delhi-Bathinda railway line at Bhatinda on NH-64 ext. Since, the dispute arose between the parties, petitioner vide the communication (Annexure A-3) dated 3.8.2009 appointed Hon’ble Mr. Justice Arb. Case No. 98 of 2010 G.C. Mittal, retired Chief Justice as its nominee arbitrator. The respondent, on the other hand, suggested the name of Shri S. P. Banwait, former Additional Director General CPWD as the Arbitrator. The respondent has communicated that in the event, the name of Shri Banwait is not acceptable to the petitioner for appointment as sole arbitrator, then he may be considered as the nominee arbitrator appointed by the employer for the constitution of the Arbitral Tribunal comprising of three arbitrators. The relevant (GCC Clause 25.3) of the agreement reads as under: - “(a) In case of any dispute or difference arising between the Employer and the Contractor relating to any matter arising out of or connected with this agreement, such disputes or differences shall be settled in accordance with the provisions of 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, a Arbitral Tribunal consisting of three arbitrators, one nominee arbitrator each to be appointed by the parties to act as Presiding Arbitrator shall be considered. In such a situation, the party invoking the arbitration cause shall first provide the name of its nominee arbitrator and thereafter the other party shall provide the name of its nominee 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 Secretary to Government of Punjab, Department of PWD (B&R).” The said Clause contemplates firstly agreement between the parties with respect to appointment of a sole 2 Arb. Case No. 98 of 2010 arbitrator and only if such an attempt does not succeed, the Arbitral Tribunal consisting of three arbitrators is to be appointed. The petitioner has nominated its arbitrator vide the communication dated 3.8.2009 (Anneuxre A-3) and respondent nominated its arbitrator vide the communication dated 20.102009 (Annexure A-5). Thus, there is no agreement for appointment of sole arbitrator. Therefore, the arbitrators named by the respective parties shall constitute the Arbitral Tribunal of three members. Such arbitrators nominated by the parties shall appoint the Presiding Arbitrator in terms of the aforesaid Arbitration Clause of the Agreement. In case, the arbitrators appointed by the parties fail to reach upon a consensus within a period of 30 days, the Presiding Arbitrator shall be appointed by Secretary, Department of PWD, B&R Branch, Chandigarh as per the agreement.. In view of the said fact, the petition is disposed of with liberty to the arbitrators to appoint the Presiding Arbitrator in terms of the agreement between the parties. If the arbitrators fail to arrive at a consensus, the Presiding Arbitrator shall be appointed by Secretary, Department of PWD, B&R Branch with thirty days. Disposed of in the above terms. (HEMANT GUPTA) JUDGE 15.9.2011 preeti 3