IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Arb. Case No. 80 of 2010 (O&M) Date of decision: 16.3.2011 Pacific Projects Limited …..petitioner vs. State of Haryana and ors …..Respondents CORAM: - HON’BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. Puneet Bali, Advocate for the petitioner Mr. P.S. Poonia, Addl. AG, Haryana for respondent No. 1. Mr. Raman B. Garg, Advocate for respondents Nos. 2 to 5. HEMANT GUPTA, J The present petition is for appointment of an Arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996 (for short the ‘Act’) in respect of the dispute arising out of a contract awarded to the petitioner for construction of multi storey residential complex of Haryana State Pollution Control Board employees in G.H. 5, Sector 23, Panchkula, vide Memo No. 1748 of 20.6.2008. Disputes arose between the parties in respect of the completion of contract and the consequent termination of the contract by respondents. The petitioner served a notice upon the respondents for referring the dispute to an independent and impartial Arbitrator to decide the dispute between the parties on 31.3.2010. The respondents did not sent any communication to the petitioner rejecting the claim of the petitioner for appointment of an arbitrator or otherwise. On 19.5.2010, the present petition seeking appointment of an Arbitrator was filed. It is the case of the respondents that on 11.11.2010, on a reference of the Executive Engineer, the Chief Administrator of the Board Arb. Case No. 80 of 2010 has appointed Shri B.B.Tihal, Superintending Engineer, HSAM Board as an Arbitrator for settlement of the dispute arising between the parties. Initially, Mr. Garg has pointed out that the request for appointment of an Arbitrator was not received as pleaded by the petitioner but in view of the communication produced by the petitioner, it is stated that though the request for appointment of Arbitrator was received in the office of Chief Engineer of the Board but the office of Chief Administrator had no knowledge about the said communication. Learned counsel for the petitioner has vehemently argued that the respondents have failed to appoint the Arbitrator as per the request made by the petitioner on 31.3.2010. It is argued that the appointment of Arbitrator vide the order dated 11.11.2010 is stated to be on the request made by the Executive Engineer but as a matter of fact, the appointment of the Arbitrator was in consequence of the disputes raised by the petitioner. The Arbitrator was appointed after invocation of the jurisdiction of this Court by the petitioner. Therefore, in view of the judgment of the Hon’ble Supreme Court (2000) 8 SCC 151, Datar Switchgears Ltd. Vs. Tata Finance Ltd and another, respondent-Board is not competent to appoint an Arbitrator. Later in Union of India v. Bharat Battery Mfg. Co. (P) Ltd., (2007) 7 SCC 684, the Hon’ble Supreme Court held: 9. We are unable to countenance the submission of the learned counsel for the appellant. Section 11(8) of the Act could have come to the aid of the appellant had the appellant appointed the arbitrator within 30 days from the date of receipt of request to do so from the respondent or the extended time, as the case may be. In the present case, as noticed above, Section 11(6) petition was filed on 30-3-2006 by the respondent. The appellant stated to have appointed one Dr. Gita Rawat on 15-5-2006 i.e. after Section 11(6) petition was filed by the respondent on 30-3-2006, which is not permissible in law. In other words, the appellants are stopped from making an appointment of the arbitrator in terms of 2 Arb. Case No. 80 of 2010 Clause 24 of the agreement after Section 11(6) petition is filed by the respondent. Once Section 11(6) petition is filed before the court, seeking appointment of an arbitrator, the power to appoint an arbitrator in terms of arbitration clause of the agreement ceases. In view of the judgments of the Supreme Court, the appointment of the arbitrator by the respondents, after the filing of the present petition, is not proper and justified. The appointment of the Arbitrator by the respondents is after the invocation of the jurisdiction of this Court and thus, the respondents are precluded in law to make an appointment in terms of the aforesaid judgment. Now, the question arises is as who should be appointed as an arbitrator. The Clause 25–A of the Agreement contemplates the reference of disputes to “capable officer” to be appointed by Chief Administrator of the Board. The learned counsel for the parties’ state that the issues raised are of questions of fact and law and a technically qualified Arbitrator should be appointed. Consequently, Shri Kuldeep Singh, Chief Engineer (Retd.), PWD, (B&R), Punjab resident of House Number 113, Sector 10-A, Chandigarh is appointed as an Arbitrator. Learned Arbitrator shall be at liberty to fix his fee in consultation with the parties on the first day of hearing, subject to the orders of this Court in this respect. (HEMANT GUPTA) JUDGE 16.3.2011 preeti 3