$-3 d< ? IN THE HIGH COURT ARB.P. T4I2OII HIMANSHU JAIN Through OF DELTiI AT NEW DELHI versus MUNICIPAL CORPORATION OF DELHI & A].TR ..... Respondents Through Ms Mini Pushkarna, Adv. with Mr Rajesh Singh, Adv. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH ORDER , 22.07.201L The petitioner has filed the present petition under Section 11(6) of the Arbitation and Conciliation Act, 1996, for appointment of independent arbitrator. The contention of the petitioner is that despite various requests and reminders made to the for paynent, the respondents failed to make the payment. It is stated that the total amount of !: Rs.18,16,0921- is due and payable by the respondents to the claimant as on 25.11.2010 r.rhich comprises of Rs.2,67,525/- tnder Claim No.l, Rs.3,38,687/- under Clairn No.2, Rs.3,33,251l- under Clairn No.3, Rs.4,87,8921- under Claim No.4 and Rs.3,88,7271- under Claim No.5. It 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 :t is also stated in the petition that since the respondents failed to make the payment to the petitioner, vide letter dated 19.06.20T0 the appointing authority was requested by the petitioner to appoint thei arbitrator. Therefore, the prayer has been made in the present petition for appointrnent of an independent person as a sole arbitrator for adjudication of the disputes between the parties. The learned counsel for the MCD has referred to clause 25 of the Contract Agreement which contains the arbination clause. The learned counsel for the MCD states that the prayer sought by the petitioner cannot be allowed in terms of clause 25 of the Contract Agreement and as the respondent is ready to appoint the arbitrator in view thereof. The learned counsel for the petitioner subrnits that the said clause 25 referred to by the respondent glves no benefit to the respondent as the appointing authority has failed to appoint the arbitrator deqpite notice dated 19.06.2010 till date. In response thereto, Ms Mini Pushkarna has referred to the order dated 18.09.2009 in Arb. Petition No.150/2009, titled as "IM/s Jyoti Constnrction Co. v. Union of India & Others" where the clause 25 had been interpreted by the Hon'ble Chief Justice under the similar -} 7 circumstances. Relevant paras of the said order read as under: "5. A similar clause was considered by S. Ravindra Bhat, J in IWs. Ansal Buildwell Limited v. \[/s.Centre for Development of Telecom (Arb.P.318/2008, decided on lst September, 2008) wherein it was held as follows: "4. Learned counsel for the petitioner relied upon the text of Section 11 and a decision of the Bombay High Court in Satya Kailashchandra Sahu vs. 1\4/s.Vidarbha Distillers, Nagpur, AIR 1998 BOMBAY 210. It was argued that when an arbihation agreement provides for appointment of a named person or persons as Arbitrator and when they refuse to act, the procedure require to be followed is as provided in Section 11. It was argued analogically, where the process containing the Agreement, envisions appointment by one of tlre parties and also provides for contingencY, a similar inference has to be drawn, that upon the happening of that contingency, the power to appoint an Arbitrator stands exhausted. 5. The Court is un-persuaded by the submission of the petitioner. The Arbination Agreement, i.e. clause 67.1 is no doubt unusually worded. That does not detract from its real efFect. The contracting parties categorically agreed that no person other than one appointed by the Executive Director, G- DOT, could act as Arbitrator and that if for any reason that was not possible, there could not be any reference for arbitration at atl. In essence what the condition says is that the foundation of the Arbitration Agreement itself is appointment by the Executive Director, in the mernner contemplated. If this condition which is frrndamental to the Arbihation Agreement itself, were to be seen with the preceding terms, it would be apparent that the C-DOT, (subject to other , 4 )' provisions of law such as Section 11, i.e. fixing time limits etc., as interpreted by the Supreme Court in Datar Switch Gear vs. Tata Finance Ltd., 2002 (8) SCC 151), retained the right to appoint Arbitrator at all times. This condition is unlike the one which the Bombay High Court had occasioned to deal with in Satya Kailashchadras case (supra). 6. It is interesting to also note that the Bombay Iligh Court had relied upon a previous decision of the Supreme Court in State of West Bengal vs. iWs.National Builders, AIR 7994 SC 200. The Supreme Court was generally speaking about the right of the Court to appoint Arbitrators, under Section 8 of the 1940 Act. The Court held as follows:- "It is for the Court to intervene and appoint another arbifiator under S.8(1Xb), if arbitration agreement does not show that it was intended that the vacancy shall not be supplied." 7. From the above discussion, it is apparent that the right of the C-DOT to appoint an Arbitator in the manner contemplated in clause 67.1.4 did not get exhausted upon the named Arbitrator refusing to act frrther. Mr.J.C.Seth, learned counsel appearing for C-DOT, submits that by an office order dated 26.8.2008, Mr.P.S.Saran@etd.), Secretary, Department of Telecom Services, and Member (Services) Telecom Commission, has been since appointed as Arbifrator." 7. In the light of the above decision, it is not possible to accede to the request of the petitioner for appointrnent of an independent arbitrator. However, Commissioner, MCD is directed to nominate an arbitrator in tenns of clause 25 within four weeks from today." , 7 r In view of the order passed by the Chief Justice, wheretn other orders have been referred to by this Court as well as by the Bombay High Court, this Court is not inclined to allow the prayer rnade in the present petition. The present petition is disposed of with the direction to flre MCD to nominate an arbitrator in terms of Clause 25 within four weeks from today. f()tu /\r-'<i-=Vcs.J\-- S.-l MAIUVTOHAN SINGH, J I JULY 22,20IL jk >