$" 8 .IN THE HIGH COURT OF DELHI AT NEW DELHI + ARB.P. 276t2011 PRATIBHA PIPES & STRUCTRUAL LTD ..... Petitioner Through: Mr. Pinaki Misra, Sr. Advocate with Mr. S.S. Ray, Mr. Vishal Phal and Ms. Rakhi Ruy, Advocates VETSUS JAWALA REAL ESTATE PVT LTD ..... Respondent Through: Mr. Arvind Nigam, Sr. Advocate with Mr. Sameer Parekh, Mr. D.P. Mohanty, Mr. Sonali Basu Parekh, Mr. Vikas Mohanty and Mr. Debojyoti Bhattacharya and Ms. Shweta Shanna. Advocate CORAM: JUSTICE S. MURALIDHAR ORDER 2t.12.2011 1. This is a petition filed by Pratibha Pipes and Structural Ltd under Section 11 of the Arbitration and Conciliation Act, 1996 ('Act') seeking the appointtnent of an arbitrator to adjudicate the disputes between the Petitioner and the Respondent \4/s Jawala Real Estate Pvt. Ltd. arising out of the agreement dated 20th March,2009 entered into between them. 2. Clause 100.2 of the General Conditions of Contract ('GCC'), which forms part of the agreement, provided for arbitration. Clause 100.2 reacls as under: ARB.P. 276/20t I Pagc I oJ'4 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified *100.2. If the said disputes, etc. are not settled by co- operation and consultation, the same shall be referred to the sole arbitrator to be nominated by the Company Secretary of the Owner, whose decision shall be final and binding on the parties. The arbitrator vacancy, if any shall also be filled up like wise." 3. Admittedly, the Petitioner did not issue any notice to the Respondent invoking the arbitration agreement. After receiving the notice in the petitions filed by the Petitioner under Sec. 9 .of the Act (OMP No. 6761201I), the Respondent has appointed Mr. P.K. Sharma, Legal Advisor to the PHD Chambers of Commerce and Industries, Delhi to act as an Arbitrator. By a letter dated 7th December 2011, learned Arbitrator has informed the Petitioner of his having entered upon reference and has fixed a pre-hearing meeting on 10th January,2012. 4. Mr. Pinaki Misra, learned Senior counsel for the Petitioner objects to the aforementioned appointment on the ground that the arbitrator nominated by the Respondent is a Legal Advisor to the PHD Chamber of Commerce and Industries,'the President of which at one time was the Chairrnan of DLF Limited, of which the Petitioner company is a subsidiary. 5. Mr. Arvind Nigam, learned Senior counsel for the Respondent states the states the fact that the Chairman of DLF Ltd. was at one point in ARB.P. 276/201I Ptge 2 af 4 \o time, the President of the PHD Chamber of Commerce and lndustries, would not affect impartiality of the arbitrator, who in any event is its Legal Advisor and not an employee. He further submitted that the learned Arbitrator would certainly disclose to the parties his interest, if any, and it would be open to the Petitioner to question the legality of the appointment of the Arbitrator by filing an appropriate application before him in accordance with provisions of the Act. 6. As far as the above objection is concerned, the Petitioner has a remedy available under Sections 12 and 13 of the Act to challenge the appointment of the Arbitrator. Such an application when filed wiil be dealt with by the learned Arbitrator on merits. It is made clear that this Courl has not expressed any opinion whatsoever on the merits of the above contention of the Petitioner. 7. It is then contended by Mr. Misra, learned senior counsel for the Petitioner that in the present case, it was the Respondent which first invoked the arbitration clause in its legal notice dated 16th August, 2011. The Respondent also filed a separate OMP No. 67612011 under Section 9 of the Act seeking urgent interim orders. However, the Respondent failed to appoint an Arbitrator for nearly three months therealter. lt was only in response to the notice received by it in the Petitioner's OMP No. ARB.P. 276/2011 Page 3 of4 (\ 67612011 that the Respondent appointed an Arbitrator. In the circumstances, the Respondent should be deemed to have forfeited its right to appoint an Arbitrator. 8. The above contention is without merit. In the first place, there is nothing in Clause 100.2 of the GCC which sets any time limit for the Respondent to appoint an Arbitrator. Further, with the Petitioner never having written to the Respondent invoking the arbitration clause and seeking the appointment of an arbitrator, it cannot object to the Respondent appointing one in accordance with the arbitration clause. The Respondent cannot, in the circumstances, be deemed to have forfeited the right to appoint the Arbitrator. 9. Accordingly, this Court declines the prayer made by the Petitioner and dismisses the petition with the above observations. S. MURALIDHAR. J DECEMBER 2I,2OI1 'raj' ARB.P. 276/20I I Page4 of4