A New Arbitrator to be appointed after demise of earlier appointed sole Arbitrator : Delhi High Court

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 30.07.2021 ARB.P. 644 2021 ENARCH CONSULTANTS PVT. LTD. Through: Mr. Udit Seth Advocate Petitioner LALJI SUPERSPECIALITY HOSPITAL AND RESEARCH Through: Mr. Rakesh Taneja Advocate ......Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. The present petition has been preferred by the petitioner under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996 seeking appointment of Sole Arbitrator to adjudicate the dispute between the The Petitioner M s. Enarch Consultants Pvt. Ltd. is said to be engaged in providing Architectural and Engineering Consultancy Services. Petitioner company claims to have provided consultancy of Architectural Engineering and Interior Services to respondent M s Lalji Super Speciality ARB.P. 644 2021 Hospital & Research Centre for setting up of a 250 bed Hospital with Guest House facilities and for this purpose a Contract Agreement was entered between the petitioner and the respondent on 15.01.2016. During execution of the work certain disputes arose between the parties which could not be settled and so petitioner company invoked arbitration vide its letter dated 10.5.2017 in terms of Contract Agreement dated 15.01.2016. However after rejection of petitioner’s invocation of arbitration by the respondent vide its letter dated 22.05.2017 petitioner approached this Court seeking appointment of Arbitrator under Section 11 of the Act. This Court vide order dated 05.02.2018appointed Justice Anil Kumar as Sole Arbitrator to adjudicate the disputes between petitioner and respondent. Learned counsel for petitioner submits that after demise of sole Arbitrator on 22.04.2021 another Arbitrator has to be appointed in this case. Notice issued. 6. Mr. Rakesh Taneja Advocate accepts notice on behalf of respondent and submits that the present petition seeking appointment of Arbitrator has been filed under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996 though the relief sought should have been under the ARB.P. 644 2021 provisions of Sections 14 & 15 of the Act. Learned counsel submits that after demise of Justice Anil Kumar appointment of another Arbitrator is not disputed. However since arbitration proceedings had already concluded and only Award was left to be pronounced therefore the entire proceedings be not conducted afresh. At this stage learned counsel for petitioner submits that the aforesaid contention of learned counsel for respondent is not disputed. Learned counsel submits that the present petition be considered as the one under Sections 14 & 15 of the Act for substitution of the Arbitrator. In view of afore noted contentions of counsel for the parties the present petition is treated under Sections 14 & 15 of the Act. Keeping in view that the dispute between the parties with regard to Contract Agreement dated 15.01.2016 has to be adjudicated which contains an arbitration clause and also that after demise of Justice Anil Kumar the sole Arbitrator a new Arbitrator has to be appointed the present petition is allowed. 10. Accordingly Justice V.P.Vaish is appointed Sole Arbitrator to adjudicate the dispute between the parties. 11. The fee of the learned Arbitrator shall be governed by the Fourth ARB.P. 644 2021 Schedule of the Arbitration and Conciliation Act 1996. 12. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 13. With aforesaid directions the present petition is accordingly disposed JUDGE SURESH KUMAR KAIT) of. JULY 30 2021 ARB.P. 644 2021 

Summary: The practice of arbitration holds key importance in resolving disputes thereby making an arbitrator absolutely integral to the process, in the case of demise or any other justifiable reason that causes the unavailability of the arbitrator, it is reasonable to seek appointment of another arbitrator to resolve the case. This was held in the judgment passed by a single bench judge comprising Hon’ble Mr. Justice Suresh Kumar Kait, in the matter of Enarch Consultants Pvt. Ltd v.  Lalji Superspeciality Hospital and Research (ARB.P. 644/2021) dealt with an issue where the petitioner filed for the appointment of another Arbitrator after the demise of the previously appointed sole Arbitrator. In the present case, The petitioner under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996 sought appointment of Sole Arbitrator to adjudicate the dispute between the parties on a Contract Agreement that was entered between the petitioner and the respondent on 15.01.2016 regarding setting up of a 250 bed Hospital with Guest House facilities for M/s Lalji Super Speciality Hospital &amp; Research Centre. During execution of the work related to the contract, certain disputes arose between the parties, which could not be settled Delhi High Court vide order dated 05.02.2018 [in Arbitration Petition No. 629/2017], petitioner-company invoked arbitration vide its letter dated 10.5.2017 in terms of Contract Agreement dated 15.01.2016. However, after rejection of petitioner’s invocation of arbitration by the respondent vide its letter dated 22.05.2017, petitioner approached this Court seeking appointment of Arbitrator under Section 11 of the Act.  The court appointed Justice (Retd.) Anil Kumar as Sole Arbitrator to adjudicate the disputes between petitioner and respondent. After demise of sole Arbitrator Justice (Retd.) Anil Kumar on 22.04.2021, the petitioner submits for another Arbitrator to be appointed in this case, this was accepted by the counsel representing on the behalf of the respondent, who also submitted that since arbitration proceedings had already concluded and only Award was left to be pronounced, therefore, the entire proceedings be not conducted afresh. This contention by the respondent was not disputed by the petitioner. The petitioner’s counsel submitted the present petition be considered as the one under Sections 14 &amp; 15 of the Act for substitution of the Arbitrator.