k/ ,»/ (Q ((?ig/ IN THE HIGH COURT OF JUDICAEURE HHATTISGARH:BILASPUR :C M.c.c. no : ¥< OF 2005 SINGLE BENCH /O {M/s Dolomite Mining Corporation Baradwar,Distt.Janjgir~Champa Registered Partnership Firm, Throuh : he Manager and Attorey, Shriindeshwari Prasad Singh aged 62 years s/o Shri Ishwar Singh Maager Dolomite Mining Corpoation r/o Baradwar, District Janjgir —Champa(C.G) RESPONDENTS M/s Bharat Aluminium / Company Ltd. Chairman— cum— Managing Director, office : Balco Nagar,. Distt. Korba(C.G.)> 1./ 9 Throuh : E;//Bharat Aluminium Ltd. BALCO: A Sterlite Group Company (a) egistered ffice: Scope Office Complex 7 Lodhi Road, New—Delhi : llO~OO3 (b) P.O. Balco Township \:Korba:Distt: Korba R O Core-6, 495—684 APPLICAEION FOR MODIFICATION OF ORDER PSED BY THE HON'BLE THE CHEF JUSTIC IN ARBITRATIQN/CASE BETWEEN AS .THE PARTxEs Mc.c. No.%12oo on 08—07-2000. . 6/o C g T n VB n r g I E $GARH : "I‘ $"UR HIGE COU'RT OF CHEAT fVi.C.C. 1W1 156 OF ZGGIE EILis. Eoiomite Mining Cornoration Vefsus ,LH / A' Q?‘r Order 1503f, forW”! ”P7!” Sd/— Dhirendra Mishra [ Judge M/s. Bharat Aiuminium Company Ltd. and’ Anr. EEG-H ”BET OF C‘I-TEATT ‘GAKI-l : Ei IVI.C.C. N0. 15!“) OF "GWI Wiis. Doiomite Iviining Corporation w Versus Eiis. Bharat Aiuminium Company Ltti. and Anr. Present :—S *‘i A mag S; *‘Wwm‘m (“mmsel for tho unnAuu‘u“, Vuou "M I" wounsa 1 for +Lhs rasponuanh r1 + T\T no. 1 L. 0'KDEK ?er Dhiren&ra Mishra. J This MCC has been registered on the basis of the application preferred by the appiicant to modify the order dated 8-7-2005 passed in MCC No. 761/2000 whereby on the pemjon of the present applicartt under Section 1 l of the Arbitration and Conciiiation Act, 1996, the Indian Council of Arbitration has been appointed as Arbitrator in ’ the matter arismg out of a contract agreement between the applicant and the respondents for mining of i,80,000 MT of Bauxite from Mainpat Mines and transportation thereof to the Aluminium Plant of the respondents at BALCO Nagar, Korba and it has been prayed that in place of Indian Council of Arbitration, any of the retired Judge of High Court settled in Madhya Pradesh or Chhattisgarh be appointed as Arbitrator. t g‘Qé z. Learned counsel for the appiicant submits that as per amended ruies of the Indian Councii of Arbitration, inalan Council of Arbitration recommends to all parties desirous of making reference to arbitration bv the Indian Councii of Arbitration the use of the foiiowing arbitration clause in writing in their contractsz~ “anV dispute or difference whatsoever arising 1wa+rrraa +14 v41 A1 1+ 4‘ n1~ 1n+1hn uuuvvuvn Lu€ 11a; up) vLLL 0.1 Lu luiauiis t0 th€ COHSU‘UCUOD meal’llng, SCOD€ OD6I‘aUOn 01‘ €ff6Ct Of Hr. mm wntraet w the vahdnV oi the breach thereof shall be settied DV arbitration in accordance with the Rmpa UL muiuauuu Of thC iuéiiafi VGuut/u 3f Arbitration and the award made in Duisuance Lin/Luv; sum; u» uuiuuxg uu Lin, Fm up») 1‘1nr‘ A? “1-“+ vu-w‘ru‘l nf n‘hnn Ina. 1n hA-unn A 1-1a nv-i—yan ’ Ha However, from perusal of the agreement particulariy Ciause 9.2.1 of Genera} Conditions of Contract for construction works, which was part of the said agreement promoted Ior reference of disputes and differences between the parties to an arbitrator, does not conform to the arbitration Ciause which is a must for referring the dispute to the Indian Councii of Arbitration. Since this promsmn was not brought to the notice of Hon'bie the Chief Justice: the designated authoritv under Section 11(0) of the Arbitration and Conciliation Act, 1996, therefore, Indian Council of Arbitration has been appomted as sole Arbitrator. He further submits that the t amount of claim is small sum of Rs. 41,6§,436/ — onlV and the arbitration proceeding before the Indian Council of /’\\J ¢ W3 Arbitration is exorbitant, and therefore, considering the fact that arbitration clause in the agreement does not conform to the arbitration clause recommended by the Indian Council of Arbitration, the order may be modified and instead of Indian Council of Arbitration, any retired Judge of High Court based at Madhya Pradesh or Chhattisgarh may be appointed. u. On the other hand, iearned counsel for the respondent opposing the application submits that the arbitration clause referred to by the applicant is only recommendatory and prayer of the parties to refer their dispute arising out of the contract agreement containing arbitration clause Can be referred to the lndian Council of Arbitration for arbitration and there is no legal bar as such. He further submits that except on the grounds / mentioned in Section 12 and Section 15 of the Arbitration and Conciliation Act, 1996, the mandate of an Arbitrator cannot be terminated or Withdrawn on application of any party to the agreement. 4. l have heard the learned counsel for the parties I » have gone through the relevant provisions of the Arbitration and Conciliation Act, 1996 as also the Rules of Arbitration of Indian Council of Arbitration, under which the proceeding of arbitration is conducted before the Indian Council of Arbitration when the matter is referred s » i or arbitration to the said co cil. So far as the submisswn ol the learned counsel for the applicant that arbltratlon clause ol the agreemenr in question does not’ conform to the recommended airbitration ciause, is ‘ i concerned, from a bare perusal ‘ofgciause referred to by the appiicant, it is evident that tihe indian Council of ' Arbitration recommends the: partiejis desirous of making refelence to arbltratlon by the Indlan Councu of Armtratlon, tne use of tne arbltratlon clause wmcn has been 1e1e1 red to m the foregomg paragaphs 1n the Rules OI Armtrauon 01 lncuan Lounc11 of A1b1trat1011, nowhere 1t‘ 1s: mentloned that 1n absence of arbitration clause as lecommended DV the councu the same cannot De reierxed to the indlan Louncu ol Arbitration therefore i am oi the View that there is no force’in the contention of the counsel for the applicant that in this ground the order of reference regujres E modiflcation. 7 SO far as the other groUnds of inconvenience or arbltratlon proceedings Demgexpenswe are concerned, since the matter has been referred by this Coiurt to the Indian Council of Arbitration for the purpose of arbitration with consent of the parties, the mandate of Arbitrator so appointed cannot be terminated except on the grounds mentioned in Section 12 or iS’of the Act of i9§6. Since the appiicant has not been abie to make out a i ‘ T i / ground mentioned- in these sections and further since the respondent is not agreeable to the change of Arbitrator at f /5/ @ U161 lnStaIlC€ OI U1€ aDDllcal'lt, the mStaIlt aD1311CaUOI1 101‘ modiflcation of the order dated 8-7—2G05 and substituting 1116 all‘éadV aDDOIl’lted arbitrator Wlm aflV OU161‘ arbitl‘atOI‘ CaIlnOt D6 aHOW6d. 5. 1n the result, the application is reiected. Sd/- Dhirendra Mishra ,‘ Judge m @