Hrd Corporation (Marcus Oil And ... vs Gail (India) Limited (Formerly Gas ...

3. Briefly stated, the relevant facts necessary to decide this case Date: 2017.08.31 17:03:57 IST Reason: are as follows. The respondent, GAIL (India), issued a notice inviting tenders for supply of wax generated at GAIL’s plant at Pata, Uttar Pradesh for a period of 20 years on an exclusive basis. The appellant successfully tendered for the said contract and the parties entered into an agreement dated April 1, 1999. Disputes arose between the parties, the appellant claiming that GAIL had wrongfully withheld supplies of wax, as a result of which the appellant invoked the arbitration clause included in the agreement.

7. In respect of the period from 2016 to 2019, initially, the appellant nominated Justice K. Ramamoorthy as its arbitrator. However, he withdrew from the case on December 14, 2016 and Justice Mukul Mudgal was nominated as arbitrator in his place. The respondent appointed Justice Doabia, and Justice Doabia and Justice K. Ramamoorthy appointed Justice K.K. Lahoti to be the presiding arbitrator, before Justice K. Ramamoorthy withdrew from the case. Two applications have been filed by the appellant under Section 12 of the Act, one seeking termination of the mandate of Justice Doabia and the other seeking termination of the mandate of Justice Lahoti. These two applications were heard and disposed of by an order dated February 16, 2017. Justice Lahoti, with whom Justice Doabia concurred, held that they were entitled to continue with the arbitration. Justice Mukul Mudgal, on the other hand, concurred in the appointment of Justice Lahoti but held that Justice Doabia’s appointment was hit by certain clauses of the Fifth and Seventh Schedules to the Act and, therefore, that his mandate has terminated. As against this order, OMP No.22/2017 was filed before a single Judge of the Delhi High Court who then dismissed both the petitions.

21. Coming to the challenge in the present case, Justice Lahoti’s appointment is challenged on the ground that the arbitrator has been an advisor to GAIL in another unconnected matter and, therefore, Justice Lahoti should be removed. In his disclosure statement made on 24.11.2016, Justice Lahoti had said:

28. We have not been shown anything to indicate that Justice Doabia would be a person holding a pronounced anti-claimant view as in Locabail (supra). Therefore, we are satisfied that there is no real possibility that Justice Doabia will not bring an open mind and objective judgment to bear on arguments made by the parties in the fourth arbitration, which may or may not differ from arguments made in the third arbitration.

29. The appointment of Justice Doabia was also attacked on the ground that he had not made a complete disclosure, in that his disclosure statement did not indicate as to whether he was likely to devote sufficient time to the arbitration and would be able to complete it within 12 months. We are afraid that we cannot allow the appellant to raise this point at this stage as it was never raised earlier. Obviously, if Justice Doabia did not indicate anything to the contrary, he would be able to devote sufficient time to the arbitration and complete the process within 12 months.

32. This being the case, we are satisfied that the learned single Judge’s judgment requires no interference. The appeals are, accordingly, dismissed.

HRD CORPORATION (MARCUS OIL AND CHEMICAL DIVISION) Petitioner(s) VERSUS GAIL (INDIA) LIMITED (FORMERLY GAS AUTHORITY OF INDIA LTD) Respondent(s) WITH SLP(C) No. 20675/2017 (XIV) Date : 31-08-2017 These petitions were called on for pronouncement of judgment today.

For Petitioner(s) Mr. Shailendra Swarup, AOR Ms. Bindu Saxena, Adv.

Ms. Aparajita Swarup, Adv.

For Respondent(s) Mrs. Vanita Bhargava, Adv.

Mr. Ajay Bhargava, Adv.

Mrs. Abhisaar Bairagi, Adv.

M/s. Khaitan & Co., AOR Hon'ble Mr. Justice Rohinton Fali Nariman pronounced the reportable judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Sanjay Kishan Kaul.

Leave granted.

The appeals are dismissed in terms of the signed reportable judgment.

(Signed reportable judgment is placed on the file)