Supreme Court of India

Perkins Eastman Architects Dpc vs Hscc (India) Limited on 26 November, 2019

Equivalent citations: AIR 2020 SUPREME COURT 59, AIRONLINE 2019 SC 1568, (2019) 17 SCALE 139, (2019) 4 CURCC 315, (2019) 6 ARBILR 132, (2019) 8 MAD LJ 623, AIR 2020 SC (CIV) 707

Author:
Uday Umesh Lalit

Bench:
Indu Malhotra
,
Uday Umesh Lalit

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd.
Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION APPLICATION NO.32 OF 2019

Perkins Eastman Architects
DPC & Anr. …Applicants

VERSUS

HSCC (India) Ltd. …Respondent

JUDGMENT

Uday Umesh Lalit, J.

1. This application under Section 11(6) read with Section 11(12)(a) of

Act1 and under the Scheme2 prays for the following principal relief:

“(a) appoint a sole Arbitrator, in accordance with
clause 24 of the Contract dated 22nd May, 2017
executed between the parties and the sole Arbitrator
so appointed may adjudicate the disputes and
differences between the parties arising from the said
Contract.”

Signature Not Verified

Digitally signed by

MUKESH KUMAR

Date: 2019.11.26

13:14:34 IST

Reason:
The Arbitration and Conciliation Act, 1996

2 The Appointment of Arbitrators by the Chief Justice of India Scheme, 1996
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd.
2. The application has been filed with following assertions: -

(A) As an executing agency of Ministry of Health and Family Welfare,

the respondent was desirous of comprehensive architectural planning and

designing for the works provided under Pradhan Mantri Swasthya

Suraksha Yojna (PMSSY). Therefore a request for Proposals bearing RFP

No.HSCC/3-AIIMS/Guntur/2016 was issued on 15.07.2016 for

appointment of Design Consultants for the “comprehensive planning and

designing, including preparation and development of concepts, master plan

for the campus, preparation of all preliminary and working drawings for

various buildings/structures, including preparation of specifications and

schedule of quantities’ for the proposed All India Institute of Medical

Sciences at Guntur, Andhra Pradesh”.

(B) In response to the RFP, the consortium of the Applicants, namely,

(i) Perkins Eastman Architects DPC, an Architectural firm having its

registered office in New York and (ii) Edifice Consultants Private Limited,

having its office in Mumbai submitted their bid on 28.09.2016. Letter of

Intent was issued on 31.11.2017 awarding the project to the Applicants, the

consideration being Rs.15.63 crores. A letter of award was issued in

favour of the Applicants on 22.02.2017 and a contract was entered into

between the Applicants and the respondent on 22.05.2017, which provided

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
inter alia for dispute resolution in Clause 24. The relevant portion of said

Clause was as under:

“24.0 DISPUTE RESOLUTION

24.1 Except as otherwise provided in the contract all
questions and disputes relating to the meaning of the
specifications, design, drawings and instructions
herein before mentioned and as to the quality of
services rendered for the works or as to any other
question, claim, right, matter or thing whatsoever in
any way arising out of or relating to the contract,
design, drawings, specifications estimates
instructions, orders or these conditions or otherwise
concerning the works or the execution or failure to
execute the same whether arising during the progress
of the work or after the cancellation, termination,
completion or abandonment thereof thereof shall be
dealt with as mentioned hereinafter:

(i) If the Design Consultant considers any work
demanded of him to be outside the requirements of
the contract or disputes on any drawings, record or
decision given in writing by HSCC on any matter in
connection with arising out of the contract or carrying
out of the work, to be unacceptable, he shall promptly
within 15 days request CGM, HSCC in writing for
written instruction or decision. There upon, the
CGM, HSCC shall give his written instructions or
decision within a period of one month from the
receipt of the Design Consultant’s letter. If the CGM,
HSCC fails to give his instructions or decision in
writing within the aforesaid period or if the Design
Consultant(s) is dissatisfied with the instructions or
decision of the CGM, HSCC, the Design
Consultants(s) may, within 15 days of the receipt of
decision, appeal to the Director (Engg.) HSCC who
shall offer an opportunity to the Design Consultant to
be heard, if the latter so desires, and to offer evidence
in support of his appeal. The Director (Engg.), HSCC
shall give his decision within 30 days of receipt of

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Design Consultant’s appeal. If the Design Consultant
is dissatisfied with the decision, the Design
Consultant shall within a period of 30 days from
receipt of this decision, give notice to the CMD,
HSCC for appointment of arbitrator failing which
the
said decision
shall be final, binding and conclusive
and not referable to adjudication by the arbitrator.

(ii) Except where the decision has become final,
binding and conclusive in terms of sub-Para (i) above
disputes or difference shall be referred for
adjudication through arbitration by a sole arbitrator
appointed by the CMD HSCC within 30 days form
the receipt of request from the Design Consultant. If
the arbitrator so appointed is unable or unwilling to
act or resigns his appointment or vacates his office
due to any reason, whatsoever another sole arbitrator
shall be appointed in the manner aforesaid. Such
person shall be entitled to proceed with the reference
from the reference from the stage at which it was left
by his predecessor. It is a term of this contract that
the party invoking arbitration shall give a list of
disputes with amounts claimed in respect of each such
dispute along with the notice for appointment of
arbitrator and giving reference to the rejection by the
CMD, HSCC of the appeal. It is also a term of this
contract that no person other than a person appointed
by such CMD, HSCC as aforesaid should act as
arbitrator. It is also a term of the contract that if the
Design Consultant does not make any demand for
appointment of arbitrator in respect of any claims in
writing as aforesaid within 120 days of receiving the
intimation from HSCC that the final bill is ready for
payment, the claim of the Design Consultant shall be
deemed to have been waived and absolutely barred
and HSCC shall be discharged and released of all
liabilities under the contract and in respect of these
claims. The arbitration shall be conducted in
accordance with the provisions of the
Arbitration and
Conciliation Act, 1996
(26 of 1996) or any statutory
modifications or re-enactment thereof and the rules
made thereunder and for the time being in force shall
apply to the arbitration proceeding under this clause.”

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
(C) Within six days of the signing of the said contract, in letter dated

26.5.2017 the respondent alleged failure on part of the Applicants which

was followed by stop work notice dated 03.11.2017. It is the case of the

Applicants that officials of the respondents were deliberately trying to stall

the project and were non-co-operative right from the initial stages.

(D) Later, a termination notice was issued by the respondent on

11.01.2019 alleging non-compliance of contractual obligations on part of

the Applicants, which assertions were denied. However, termination letter

was issued on 20.02.2019. On 11.04.2019 a notice was issued by the

Advocate for the applicants invoking the dispute resolution Clause namely

Clause 24 as aforesaid raising a claim of Rs.20.95 crores.

According to the Applicants, a decision in respect of the notice dated

11.04.2019 was required to be taken within one month in terms of Clause

24 of the contract but a communication was sent by the respondent on

10.05.2019 intimating that a reply to the notice would be sent within 30

days.

(E) An appeal was filed by the Applicants before the Director

(Engineering) in terms of said Clause 24 but there was complete failure on

part of the Director (Engineering) to discharge the obligations in terms of

said Clause 24. Therefore, by letter dated 28.06.2019 the
Chief Managing
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Director of the respondent was called upon to appoint a sole arbitrator in

terms of said Clause 24. However, no appointment of an arbitrator was

made within thirty days but a letter was addressed by Chief General

Manager of the respondent on 30.07.2019 purportedly appointing one

Major General K.T. Gajria as the sole arbitrator.

(F) The relevant averments in para 3 of the application are:-

“z. The 30 (thirty) day time period for appointment
of a sole arbitrator stood expired on 28 th July, 2019
and yet the CMD of the respondent failed to appoint a
sole arbitrator or even respond to the letter dated 28 th
June, 2019 (received on 29th June, 2019).

aa. Shockingly, in continuance of its highhanded
approach and in contravention to its own letter dated
24th June, 2019, the CGM of the Respondent
addressed the Purported Appointment Letter dated
30th July, 2019 to one Major General K.T. Gajria
thereby purportedly appointing him as a sole
arbitrator in the matter. On the same date, the CGM
of the Respondent also addressed a letter to the
Applicants inter alia informing about the purported
appointment of Mr. Gajria”

3. In the aforesaid premises the Applicants submit:-

(a) The Applicants had duly invoked the arbitration clause;

(b) The Chairman and Managing Director was the competent

authority to appoint a sole arbitrator;

(c) But the Chief General Manager of the respondent wrongfully

appointed the sole arbitrator;

(d) Such appointment was beyond the period prescribed;

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
(e) In any case, an independent and impartial arbitrator is required to

be appointed.

4. In response to the application, an affidavit-in-reply has been filed

by the respondent denying all material allegations. It is accepted that the

contract entered into between the parties contains Clause 24 regarding

dispute resolution. It is, however, disputed that there was any inaction on

part of the respondent in discharging their obligations in terms of Clause

24. It is submitted, inter alia, that

(a) The appointment of Major General K.T. Gajria was in

consonance with Clause 24 of the contract;

(b) Such appointment could not in any way be said to be illegal;

(c) There was no occasion to file an application seeking

appointment of any other person under the provisions of Section 11(6)

read with Section 11(12)(a) of the Act; and

(d) In any case, the arbitration in the present matter would not be an

International Commercial Arbitration within the meaning of
Section

2(1)(f)
of the Act.

5. We heard Mr. Amar Dave, learned Advocate for the Applicants and

Mr. Guru Krishna Kumar, learned Senior Advocate for the respondent.

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
It was submitted by Mr. Dave, learned Advocate that on account of

failure on part of the respondent in discharging its obligations in terms of

Clause 24, the applicants would be entitled to maintain the present

Application and seek appointment of an arbitrator as prayed for. It was

further submitted that the appointment process contemplated in Clause 24

gave complete discretion to the Chairman and Managing Director of the

respondent to make an appointment of an arbitrator of his choice, the

Chairman and Managing Director of the respondent would naturally be

interested in the outcome or decision in respect of the dispute, the pre-

requisite of element of impartiality would, therefore, be conspicuously

absent in such process; and as such it would be desirable that this Court

makes an appropriate appointment of an arbitrator. Reliance was placed on

the decisions of this Court in Walter Bau AG, Legal Successor of the

Original Contractor, Dyckerhoff and Widmann, A.G. v. Municipal

Corporation of Greater Mumbai and another 3 and TRF Limited v.

Energo Engineering Projects Limited4 in support of the submissions. Mr.

Dave, learned Advocate also relied upon the decision of this Court in

Larsen and Toubro Limited SCOMI Engineering BHD v. Mumbai

Metropolitan Region Development Authority5
to bring home the point that

3 (
2015) 3 SCC 800
4 (2017) 8 SCC 377
5 (2019) 2 SCC 271
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
the arbitration in the present matter would be an International Commercial

Arbitration.

Mr. Guru Krishna Kumar, learned Senior Advocate appearing for

the respondent submitted that no case was made out to maintain the instant

application. He submitted that two basic submissions were raised in para 3

in sub-para (z) and (aa) of the application that the Chairman and Managing

Director failed to appoint the sole arbitrator within 30 days of the

requisition dated 28.06.2019 and that it was the Chief General Manager of

the respondent who purportedly made the appointment of a sole arbitrator

on 30.07.2019. The infirmities thus projected were on two counts, namely,

for over-stepping the limit of 30 days; and secondly the appointment was

not made by the Chairman and Managing Director of the respondent. He

pointed out that the period in terms of requisition dated 28.06.2019 expired

on Friday and the appointment was made on the first available working

day. Secondly, the appointment was actually made by the Chairman and

Managing Director but was conveyed by the Chief General Manager, and

as such the alleged infirmities were completely non-existent. He further

submitted that arbitration, if any, in the instant matter would not be an

International Commercial Arbitration.

6. The present application, therefore, raises two basic issues; first

whether the arbitration in the present case would be an
International
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Commercial Arbitration or not. In case, it is not, then this Court cannot

deal with the application under
Section 11(6)
read with
Section 11(12)(a)

of the Act. The second issue is whether a case is made out for exercise of

power by the Court to make an appointment of an arbitrator.

7. During the course of hearing, reliance was placed by the Applicants

on the Consortium Agreement entered into between the Applicant No.1 and

the Applicant No.2 on 20.09.2016 which described the Applicant No.1 as

the lead member of the Consortium. The relevant recital and the Clause of

the Agreement were as under:

“1. WHEREAS all the Parties agree that Perkins
Eastman will be the focal point for the agreement and
interaction with the client.”

“9. Perkins Eastman and M/s. Edifice Consultants are
jointly and severally responsible for the execution of
the project”

In terms of requirements of the bid documents and RFP a

“Declaration for Lead Member of the Consortium (Form E)” was also

submitted. The declaration was as under:

“WHEREAS M/s. HSCC (India) Ltd. (HSCC) (the
Client) has invited Bids/Bids from the interested
parties for providing Comprehensive Planning and
Designing of the Proposed All India Institute of
Medical Sciences at Mangalagiri, Guntur (AP).

AND WHEREAS, the members of the Consortium
are interested in bidding for the Project and
implementing the Project in accordance with the

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
terms and conditions of the Request for Bid (RFP)
document, Terms of Reference, Client’s Requirement,
Notice Inviting Bid, Instructions to Bidders,
Conditions of Contract and other connected
documents in respect of the Project, and

AND WHEREAS, it is necessary under the RFP
document for the members of the Consortium Bidder
to designate one of them as the Lead Manager with all
necessary power and authority to do for and on behalf
of the Consortium bidder, all acts, deeds and things as
may be necessary in connection with the Consortium
Bidder’s proposal for the Project.

NOW THIS DECLARATION WITNESSETH THAT;

We, Perkins Eastman Architects DPC, and having its
registered office at 115 5th Ave Floor 3, New York,
NY 10003-10004, USA and M/s. Edifice Consultants
Private Limited having its registered office at Srirams
Arcade, 3rd Floor, Opp. Govandi P.O., Off Govandi
Station Road, Govandi East, Mumbai, Maharashtra
400088 do hereby designate Perkins Eastman
Architects DPC being one of the members of the
Consortium, as the Lead Member of the Consortium,
to do on behalf of the Consortium, all or any of the
acts, deeds of things necessary or incidental to the
Consortium’s Application/Bid for the Project,
including submission of Application/Bid, participating
in conferences, responding to queries, submission of
information/documents and generally to represent the
Consortium in all its dealings with HSCC, any other
Government Agency or any person, in connection
with the Project until culmination of the process of
bidding and thereafter till the completion of the
Contract.”

8. It is not disputed by the respondent that it was a requisite condition

to declare a lead member of the Consortium and that by aforesaid

declaration the applicant No.1 was shown to be the lead member of the

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Consortium. The reliance is however placed by the respondent on Clause

9 of the Consortium Agreement by virtue of which both the Applicants

would be jointly and severely responsible for the execution of the project.

It is clear that the declaration shows that the Applicant No.1 was accepted

to be the lead member of the Consortium. Even if the liability of both the

Applicants was stated in Clause 9 to be joint and several, that by itself

would not change the status of the Applicant No.1 to be the lead member.

We shall, therefore, proceed on the premise that Applicant No.1 is the lead

member of the Consortium.

9. In Larsen and Toubro Limited SCOMI Engineering BHD 5 more

or less similar fact situation came up for consideration. The only

distinction was that the lead member in the consortium was an entity

registered in India. Paragraphs 2, 3, 4, 15, 17, 18 and 19 of the decision

are as under:

“2. Since disputes arose between the parties to the
agreement, various interim claims had been made by
the Consortium of M/s Larsen and Toubro, an Indian
company, together with Scomi Engineering Bhd, a
company incorporated in Malaysia, for which the
Consortium has filed this petition under
Section 11
of
the Act to this Court, since according to them, one of
the parties to the arbitration agreement, being a body
corporate, incorporated in Malaysia, would be a body
corporate, which is incorporated in a country other
than India, which would attract
Section 2(1)(f)(ii)
of
the Act.

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
3. Shri Gopal Jain, learned Senior Counsel appearing
on behalf of the Consortium, has taken us through the
agreement, in which he strongly relies upon the fact
that the two entities, that is, the Indian company and
the Malaysian company, though stated to be a
Consortium, are jointly and severally liable, to the
employer. The learned Senior Counsel has also relied
upon the fact that throughout the working of the
contract, separate claims have been made, which have
been rejected by the Mumbai Metropolitan Region
Development Authority (hereinafter referred to as
“MMRDA”). He has also further relied upon the fact
that by at least three letters, during the working of the
agreement, the claims have in fact been rejected
altogether and that, therefore, there is no impediment
in invoking the arbitration Clause under
Section 20
.4
of the general conditions of contract (hereinafter
referred to as “GCC”), as the procedure outlined by
Clauses 20.1 to 20.3 had already been exhausted.

4. On the other hand, Mr Shyam Divan, learned
Senior Counsel appearing on behalf of MMRDA, the
respondent, has relied upon both the contract dated 9-

1-2009 as well as the actual consortium agreement
dated 4-6-2008 between the Indian company and the
Malaysian company, which, when read together,
would show that they are really an unincorporated
association and would, therefore, fall within
Section
2(1)(f)(iii)
as being an association or a body of
individuals, provided the central management and
control is exercised in any country other than India.

… … …

15.
Section 2(1)(f)(iii)
of the Act refers to two
different sets of persons: an “association” as distinct
and separate from a “body of individuals”. For
example, under
Section 2(31)
of the Income Tax Act,
1961, “person” is defined as including, under sub-
clause (v), an association of persons, or body of
individuals, whether incorporated or not. It is in this
sense, that an association is referred to in
Section 2(1)

(f)(iii) which would therefore include a consortium
consisting of two or more bodies corporate, at least
one of whom is a body corporate incorporated in a
country other than India.

… … …

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
17. Law Commission Report No. 246 of August 2014,
which made several amendments to the
Arbitration
and Conciliation Act, 1996
, gave the following reason
for deleting the words “a company or”:

“(iii) In sub-section (1), clause (f), sub-clause

(iii), delete the words “a company or” before the
words “an association or a body of individuals”.

[Note.—The reference to “a company” in sub-

section (iii) has been removed since the same is
already covered under sub-section (ii). The
intention is to determine the residence of a
company based on its place of incorporation and
not the place of central management/control. This
further re-enforces the “place of incorporation”
principle
laid down by
the Supreme Court in

TDM Infrastructure (P) Ltd. v. UE Development
India (P) Ltd.6
, and adds greater certainty in case
of companies having a different place of
incorporation and place of exercise of central
management and control.]”

It would become clear that prior to the deletion of the
expression “a company or”, there were three sets of
persons referred to in
Section 2(1)(f)(iii)
as separate
and distinct persons who would fall within the said
sub-clause. This does not change due to the deletion
of the phrase “a company or” for the reason given by
the Law Commission. This is another reason as to
why “an association” cannot be read with “body of
individuals” which follows it but is a separate and
distinct category by itself, as is understood from the
definition of “person” as defined in the
Income Tax
Act

referred to above
.

18. This being the case, coupled with the fact, as
correctly argued by Shri Divan, that the Indian
company is the lead partner, and that the Supervisory
Board constituted under the consortium agreement
makes it clear that the lead partner really has the
determining voice in that it appoints the Chairman of
the said Board (undoubtedly, with the consent of other
members); and the fact that the Consortium’s office is

6 (
2008) 14 SCC 271
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
in Wadala, Mumbai as also that the lead member shall
lead the arbitration proceedings, would all point to the
fact that the central management and control of this
Consortium appears to be exercised in India and not
in any foreign nation.

19. This being the case, we dismiss the petition filed
under
Section 11
of the Act, as there is no
“international commercial arbitration” as defined
under
Section 2(1)(f)
of the Act for the petitioner to
come to this Court. We also do not deem it necessary
to go into whether the appropriate stage for invoking
arbitration has yet been reached.”

10. It was thus held that “Association” and “Body of individuals”

referred to in
Section 2(1)(f)
of the Act would be separate categories.

However, the lead member of the Association
in that case
being an Indian

entity, the “Central Management and Control” of the Association was held

to be in a country other than India. Relying on said decision we conclude

that the lead member of the Consortium company i.e. Applicant No.1 being

an Architectural Firm having its registered office in New York,

requirements of
Section 2(1)(f)
of the Act are satisfied and the arbitration

in the present case would be an “International Commercial Arbitration”.

11. That takes us to the second issue, namely, whether a case has been

made out for exercise of power by the Court for an appointment of an

arbitrator.

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
12. The communication invoking arbitration in terms of Clause 24 was

sent by the Applicants on 28.06.2019 and the period within which the

respondent was to make the necessary appointment expired on 28.07.2019.

The next day was a working day but the appointment was made on

Tuesday, the 30th July, 2019. Technically, the appointment was not within

the time stipulated but such delay on part of the respondent could not be

said to be an infraction of such magnitude that exercise of power by the

Court under
Section 11
of the Act merely on that ground is called for.

13. However, the point that has been urged, relying upon the decision

of this Court in Walter Bau AG3 and TRF Limited4, requires consideration.

In the present case Clause 24 empowers the Chairman and Managing

Director of the respondent to make the appointment of a sole arbitrator and

said Clause also stipulates that no person other than a person appointed by

such Chairman and Managing Director of the respondent would act as an

arbitrator. In TRF Limited4 , a Bench of three Judges of this Court, was

called upon to consider whether the appointment of an arbitrator made by

the Managing Director of the respondent therein was a valid one and

whether at that stage an application moved under
Section 11(6)
of the Act

could be entertained by the Court. The relevant Clause, namely, Clause 33

which provided for resolution of disputes
in that case
was under:

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
“33. Resolution of dispute/arbitration

(a) In case any disagreement or dispute arises
between the buyer and the seller under or in
connection with the PO, both shall make
every effort to resolve it amicably by direct
informal negotiation.

(b) If, even after 30 days from the
commencement of such informal negotiation,
seller and the buyer have not been able to
resolve the dispute amicably, either party may
require that the dispute be referred for
resolution to the formal mechanism of
arbitration.

(c) All disputes which cannot be settled by
mutual negotiation shall be referred to and
determined by arbitration as per the

Arbitration and Conciliation Act, 1996
as
amended.

(d) Unless otherwise provided, any dispute or
difference between the parties in connection
with this agreement shall be referred to sole
arbitration of the Managing Director of buyer
or his nominee. Venue of arbitration shall be
Delhi, and the arbitration shall be conducted
in English language.

(e) The award of the Tribunal shall be final and
binding on both, buyer and seller.”

14. In TRF Limited4, the Agreement was entered into before the

provisions of the
Amending Act
(Act No.3 of 2016) came into force. It

was submitted by the appellant that by virtue of the provisions of the

Amending Act
and insertion of the Fifth and Seventh Schedules in the Act,

the Managing Director of the respondent would be a person having direct

interest in the dispute and as such could not act as an arbitrator. The

extension of the submission was that a person who himself was

disqualified and disentitled could also not nominate any other person to act

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
as an arbitrator. The submission countered by the respondent therein was

as under: -

“7.1. The submission to the effect that since the
Managing Director of the respondent has become
ineligible to act as an arbitrator subsequent to the
amendment in the Act, he could also not have
nominated any other person as arbitrator is absolutely
unsustainable, for the Fifth and the Seventh Schedules
fundamentally guide in determining whether
circumstances exist which give rise to justifiable
doubts as to the independence and impartiality of the
arbitrator. To elaborate, if any person whose
relationship with the parties or the counsel or the
subject-matter of dispute falls under any of the
categories specified in the Seventh Schedule, he is
ineligible to be appointed as an arbitrator but not
otherwise.

The issue was discussed and decided by this Court as under:-

50. First, we shall deal with Clause (d). There is no
quarrel that by virtue of
Section 12(5)
of the Act, if
any person who falls under any of the categories
specified in the Seventh Schedule shall be ineligible
to be appointed as the arbitrator. There is no doubt
and cannot be, for the language employed in the
Seventh Schedule, the Managing Director of the
Corporation has become ineligible by operation of
law. It is the stand of the learned Senior Counsel for
the appellant that once the Managing Director
becomes ineligible, he also becomes ineligible to
nominate. Refuting the said stand, it is canvassed by
the learned Senior Counsel for the respondent that the
ineligibility cannot extend to a nominee if he is not
from the Corporation and more so when there is
apposite and requisite disclosure. We think it
appropriate to make it clear that in the case at hand we
are neither concerned with the disclosure nor
objectivity nor impartiality nor any such other
circumstance. We are singularly concerned with the
issue, whether the Managing Director, after becoming
ineligible by operation of law, is he still eligible to

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
nominate an arbitrator. At the cost of repetition, we
may state that when there are two parties, one may
nominate an arbitrator and the other may appoint
another. That is altogether a different situation. If
there is a clause requiring the parties to nominate their
respective arbitrator, their authority to nominate
cannot be questioned. What really in that
circumstance can be called in question is the
procedural compliance and the eligibility of their
arbitrator depending upon the norms provided under
the Act and the Schedules appended thereto. But, here
is a case where the Managing Director is the “named
sole arbitrator” and he has also been conferred with
the power to nominate one who can be the arbitrator
in his place. Thus, there is subtle distinction.
In this
regard, our attention has been drawn to a two-Judge
Bench decision in
State of Orissa v. Commr. of Land
Records & Settlement7
. In the said case, the question
arose, can the Board of Revenue revise the order
passed by its delegate. Dwelling upon the said
proposition, the Court held: (SCC p. 173, para 25)
“25. We have to note that the Commissioner
when he exercises power of the Board delegated
to him under
Section 33
of the Settlement Act,
1958, the order passed by him is to be treated as
an order of the Board of Revenue and not as that
of the Commissioner in his capacity as
Commissioner. This position is clear from two
rulings of this Court to which we shall presently
refer.

The first of the said rulings is the one
decided by the Constitution Bench of this Court
in
Roop Chand v. State of Punjab8
. In that case,
it was held by the majority that where the State
Government had, under
Section 41(1)
of the
East Punjab Holdings (Consolidation and
Prevention of Fragmentation) Act, 1948,
delegated its appellate powers vested in it under

Section 21(4)
to an “officer”, an order passed by
such an officer was an order passed by the State
Government itself and “not an order passed by
any officer under this Act” within
Section 42
and
was not revisable by the State Government.

It
was pointed out that for the purpose of exercise
7 (
1998) 7 SCC 162
8 AIR 1963 SC 1503
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
of powers of revision by the State under
Section
of that Act, the order sought to be revised
must be an order passed by an officer in his own
right and not as a delegate of the State. The
State Government was, therefore, not entitled
under
Section 42
to call for the records of the
case which was disposed of by an officer acting
as its delegate.”
(emphasis in original)

51. Be it noted in the said case, reference was made to

Behari Kunj Sahkari Awas Samiti v. State of U.P.9
,
which followed the decision in
Roop Chand v. State
of Punjab8
. It is seemly to note here that the said
principle has been followed in Indore Vikas
Pradhikaran10.

52. Mr Sundaram has strongly relied on Pratapchand
Nopaji11. In the said case, the three-Judge Bench
applied the maxim “qui facit per alium facit per se”.
We may profitably reproduce the passage: (SCC p.
214, para 9)
“9. … The principle which would apply, if the
objects are struck by
Section 23
of the Contract
Act, is embodied in the maxim: “qui facit per
alium facit per se” (what one does through
another is done by oneself). To put it in another
form, that which cannot be done directly may
not be done indirectly by engaging another
outside the prohibited area to do the illegal act
within the prohibited area. It is immaterial
whether, for the doing of such an illegal act, the
agent employed is given the wider powers or
authority of the “pucca adatia”, or, as the High
Court had held, he is clothed with the powers of
an ordinary commission agent only.”

53. The aforesaid authorities have been commended
to us to establish the proposition that if the

9 (1997) 7 SCC 37
10 Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.,
(
2007) 8 SCC 705
11 Pratapchand Nopaji v. Kotrike Venkata Setty & Sons
, (
1975) 2 SCC 208
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
nomination of an arbitrator by an ineligible arbitrator
is allowed, it would tantamount to carrying on the
proceeding of arbitration by himself. According to the
learned counsel for the appellant, ineligibility strikes
at the root of his power to arbitrate or get it arbitrated
upon by a nominee.

54. In such a context, the fulcrum of the controversy
would be, can an ineligible arbitrator, like the
Managing Director, nominate an arbitrator, who may
be otherwise eligible and a respectable person. As
stated earlier, we are neither concerned with the
objectivity nor the individual respectability. We are
only concerned with the authority or the power of the
Managing Director. By our analysis, we are obligated
to arrive at the conclusion that once the arbitrator has
become ineligible by operation of law, he cannot
nominate another as an arbitrator. The arbitrator
becomes ineligible as per prescription contained in

Section 12(5)
of the Act. It is inconceivable in law
that person who is statutorily ineligible can nominate
a person. Needless to say, once the infrastructure
collapses, the superstructure is bound to collapse. One
cannot have a building without the plinth. Or to put it
differently, once the identity of the Managing Director
as the sole arbitrator is lost, the power to nominate
someone else as an arbitrator is obliterated. Therefore,
the view expressed by the High Court is not
sustainable and we say so.”

15. It was thus held that as the Managing Director became ineligible by

operation of law to act as an arbitrator, he could not nominate another

person to act as an arbitrator and that once the identity of the Managing

Director as the sole arbitrator was lost, the power to nominate someone

else as an arbitrator was also obliterated. The relevant Clause in said case

had nominated the Managing Director himself to be the sole arbitrator and

also empowered said Managing Director to nominate another person to act

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
as an arbitrator. The Managing Director thus had two capacities under said

Clause, the first as an arbitrator and the second as an appointing authority.

In the present case we are concerned with only one capacity of the

Chairman and Managing Director and that is as an appointing authority.

We thus have two categories of cases. The first, similar to the one

dealt with in TRF Limited4 where the Managing Director himself is named

as an arbitrator with an additional power to appoint any other person as an

arbitrator. In the second category, the Managing Director is not to act as an

arbitrator himself but is empowered or authorised to appoint any other

person of his choice or discretion as an arbitrator. If, in the first category

of cases, the Managing Director was found incompetent, it was because of

the interest that he would be said to be having in the outcome or result of

the dispute. The element of invalidity would thus be directly relatable to

and arise from the interest that he would be having in such outcome or

decision. If that be the test, similar invalidity would always arise and

spring even in the second category of cases. If the interest that he has in

the outcome of the dispute, is taken to be the basis for the possibility of

bias, it will always be present irrespective of whether the matter stands

under the first or second category of cases. We are conscious that if such

deduction is drawn from the decision of this Court in TRF Limited4, all

cases having clauses similar to that with which we are presently concerned,

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
a party to the agreement would be disentitled to make any appointment of

an Arbitrator on its own and it would always be available to argue that a

party or an official or an authority having interest in the dispute would be

disentitled to make appointment of an Arbitrator.

16. But, in our view that has to be the logical deduction from TRF

Limited4. Paragraph 50 of the decision shows that this Court was

concerned with the issue, “whether the Managing Director, after becoming

ineligible by operation of law, is he still eligible to nominate an Arbitrator”

The ineligibility referred to therein, was as a result of operation of law, in

that a person having an interest in the dispute or in the outcome or decision

thereof, must not only be ineligible to act as an arbitrator but must also not

be eligible to appoint anyone else as an arbitrator and that such person

cannot and should not have any role in charting out any course to the

dispute resolution by having the power to appoint an arbitrator. The next

sentences in the paragraph, further show that cases where both the parties

could nominate respective arbitrators of their choice were found to be

completely a different situation. The reason is clear that whatever

advantage a party may derive by nominating an arbitrator of its choice

would get counter balanced by equal power with the other party. But, in a

case where only one party has a right to appoint a sole arbitrator, its choice

will always have an element of exclusivity in determining or charting the

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
course for dispute resolution. Naturally, the person who has an interest in

the outcome or decision of the dispute must not have the power to appoint

a sole arbitrator. That has to be taken as the essence of the amendments

brought in by the
Arbitration and Conciliation (Amendment) Act, 2015

(Act 3 of 2016) and recognised by the decision of this Court in TRF

Limited4.

17. We must also at this stage refer to the following observations made

by this Court in para 48 of its decision in
Indian Oil Corpn. Ltd. v. Raja

Transport (P) Ltd.12
, which were in the context that was obtaining before

Act 3 of 2016 had come into force: -

“48. In the light of the above discussion, the scope of

Section 11
of the Act containing the scheme of
appointment of arbitrators may be summarised thus:

(i) Where the agreement provides for arbitration with
three arbitrators (each party to appoint one arbitrator
and the two appointed arbitrators to appoint a third
arbitrator), in the event of a party failing to appoint an
arbitrator within 30 days from the receipt of a request
from the other party (or the two nominated arbitrators
failing to agree on the third arbitrator within 30 days
from the date of the appointment), the Chief Justice or
his designate will exercise power under sub-section
(4) of
Section 11
of the Act.

(ii) Where the agreement provides for arbitration by a
sole arbitrator and the parties have not agreed upon
any appointment procedure, the Chief Justice or his
designate will exercise power under sub-section (5) of

Section 11
, if the parties fail to agree on the

12 (
2009) 8 SCC 520
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
arbitration within thirty days from the receipt of a
request by a party from the other party.

(iii) Where the arbitration agreement specifies the
appointment procedure, then irrespective of whether
the arbitration is by a sole arbitrator or by a three-
member Tribunal, the Chief Justice or his designate
will exercise power under sub-section (6) of
Section
, if a party fails to act as required under the agreed
procedure (or the parties or the two appointed
arbitrators fail to reach an agreement expected of
them under the agreed procedure or any
person/institution fails to perform any function
entrusted to him/it under that procedure).

(iv) While failure of the other party to act within 30
days will furnish a cause of action to the party seeking
arbitration to approach the Chief Justice or his
designate in cases falling under sub-sections (4) and
(5), such a time-bound requirement is not found in
sub-section (6) of
Section 11
. The failure to act as per
the agreed procedure within the time-limit prescribed
by the arbitration agreement, or in the absence of any
prescribed time-limit, within a reasonable time, will
enable the aggrieved party to file a petition under

Section 11(6)
of the Act.

(v) Where the appointment procedure has been agreed
between the parties, but the cause of action for
invoking the jurisdiction of the Chief Justice or his
designate under clauses (a), (b) or (c) of sub-section
(6) has not arisen, then the question of the Chief
Justice or his designate exercising power under sub-
section (6) does not arise. The condition precedent for
approaching the Chief Justice or his designate for
taking necessary measures under sub-section (6) is
that

(i) a party failing to act as required under the
agreed appointment procedure; or

(ii) the parties (or the two appointed arbitrators)
failing to reach an agreement expected of them
under the agreed appointment procedure; or

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
(iii) a person/institution who has been entrusted
with any function under the agreed appointment
procedure, failing to perform such function.

(vi) The Chief Justice or his designate while
exercising power under sub-section (6) of
Section 11

shall endeavour to give effect to the appointment
procedure prescribed in the arbitration clause.

(vii) If circumstances exist, giving rise to justifiable
doubts as to the independence and impartiality of the
person nominated, or if other circumstances warrant
appointment of an independent arbitrator by ignoring
the procedure prescribed, the Chief Justice or his
designate may, for reasons to be recorded ignore the
designated arbitrator and appoint someone else.”

18. Sub para (vii) of aforesaid paragraph 48 lays down that if there are

justifiable doubts as to the independence and impartiality of the person

nominated, and if other circumstances warrant appointment of an

independent arbitrator by ignoring the procedure prescribed, such

appointment can be made by the Court. It may also be noted that on the

issue of necessity and desirability of impartial and independent arbitrators

the matter was considered by the Law Commission in its report No.246.

Paragraphs 53 to 60 under the heading “Neutrality of Arbitrators” are

quoted in the Judgment of this Court in Voestapline Schienen Gmbh v.

Delhi Metro Rail Corpn. Ltd.13, while paras 59 and 60 of the report stand

extracted in the decision of this Court in
Bharat Broadband Network

13 (2017) 4 SCC 665
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Limited v. United Telecoms Limited14
. For the present purposes, we may

rely on paragraph 57, which is to the following effect:-

“57. The balance between procedural fairness and
binding nature of these contracts, appears to have
been tilted in favour of the latter by the Supreme
Court, and the Commission believes the present
position of law is far from satisfactory. Since the
principles of impartiality and independence cannot be
discarded at any stage of the proceedings, specifically
at the stage of constitution of the Arbitral Tribunal, it
would be incongruous to say that party autonomy can
be exercised in complete disregard of these principles
— even if the same has been agreed prior to the
disputes having arisen between the parties. There are
certain minimum levels of independence and
impartiality that should be required of the arbitral
process regardless of the parties’ apparent agreement.
A sensible law cannot, for instance, permit
appointment of an arbitrator who is himself a party to
the dispute, or who is employed by (or similarly
dependent on) one party, even if this is what the
parties agreed. The Commission hastens to add that
Mr P.K. Malhotra, the ex officio member of the Law
Commission suggested having an exception for the
State, and allow State parties to appoint employee
arbitrators. The Commission is of the opinion that, on
this issue, there cannot be any distinction between
State and non-State parties. The concept of party
autonomy cannot be stretched to a point where it
negates the very basis of having impartial and
independent adjudicators for resolution of disputes. In
fact, when the party appointing an adjudicator is the
State, the duty to appoint an impartial and
independent adjudicator is that much more onerous
— and the right to natural justice cannot be said to
have been waived only on the basis of a “prior”
agreement between the parties at the time of the
contract and before arising of the disputes.”

14 (
2019) 5 SCC 755
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
19. In Voestalpine3, this Court dealt with independence and

impartiality of the arbitrator as under:

“20. Independence and impartiality of the arbitrator
are the hallmarks of any arbitration proceedings. Rule
against bias is one of the fundamental principles of
natural justice which applied to all judicial and quasi-
judicial proceedings. It is for this reason that
notwithstanding the fact that relationship between the
parties to the arbitration and the arbitrators themselves
are contractual in nature and the source of an
arbitrator’s appointment is deduced from the
agreement entered into between the parties,
notwithstanding the same non-independence and non-
impartiality of such arbitrator (though contractually
agreed upon) would render him ineligible to conduct
the arbitration. The genesis behind this rational is that
even when an arbitrator is appointed in terms of
contract and by the parties to the contract, he is
independent of the parties. Functions and duties
require him to rise above the partisan interest of the
parties and not to act in, or so as to further, the
particular interest of either parties. After all, the
arbitrator has adjudicatory role to perform and,
therefore, he must be independent of parties as well as
impartial. The United Kingdom Supreme Court has
beautifully highlighted this aspect in Hashwani v.
Jivraj15 in the following words: (WLR p. 1889, para

45)

“45. … the dominant purpose of appointing an
arbitrator or arbitrators is the impartial
resolution of the dispute between the parties in
accordance with the terms of the agreement and,
although the contract between the parties and the
arbitrators would be a contract for the provision
of personal services, they were not personal
services under the direction of the parties.”

15 (2011) 1 WLR 1872; 2011
UKSC 40
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
21. Similarly, Cour de Cassation, France, in a
judgment delivered in 1972 in Consorts Ury,
underlined that:

“an independent mind is indispensable in the exercise
of judicial power, whatever the source of that power
may be, and it is one of the essential qualities of an
arbitrator.”

22. Independence and impartiality are two different
concepts. An arbitrator may be independent and yet,
lack impartiality, or vice versa. Impartiality, as is well
accepted, is a more subjective concept as compared to
independence. Independence, which is more an
objective concept, may, thus, be more
straightforwardly ascertained by the parties at the
outset of the arbitration proceedings in light of the
circumstances disclosed by the arbitrator, while
partiality will more likely surface during the
arbitration proceedings.

……. ….. ……

30. Time has come to send positive signals to the
international business community, in order to create
healthy arbitration environment and conducive
arbitration culture in this country. Further, as
highlighted by the Law Commission also in its report,
duty becomes more onerous in government contracts,
where one of the parties to the dispute is the
Government or public sector undertaking itself and
the authority to appoint the arbitrator rests with it. In
the instant case also, though choice is given by
DMRC to the opposite party but it is limited to choose
an arbitrator from the panel prepared by DMRC. It,
therefore, becomes imperative to have a much
broadbased panel, so that there is no misapprehension
that principle of impartiality and independence would
be discarded at any stage of the proceedings, specially
at the stage of constitution of the Arbitral Tribunal.
We, therefore, direct that DMRC shall prepare a
broadbased panel on the aforesaid lines, within a
period of two months from today.”

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
20. In the light of the aforestated principles, the report of the Law

Commission and the decision in Voestapline Schienen Gmbh13, the

imperatives of creating healthy arbitration environment demand that the

instant application deserves acceptance.

21. The further question that arises is whether the power can be

exercised by this Court under
Section 11
of the Act when the appointment

of an arbitrator has already been made by the respondent and whether the

appellant should be left to raise challenge at an appropriate stage in terms

of remedies available in law. Similar controversy was gone into by a

Designated Judge of this Court in Walter Bau AG3 and the discussion on

the point was as under:-

“9. While it is correct that in Antrix16 and Pricol
Ltd.17, it was opined by this Court that after
appointment of an arbitrator is made, the remedy of
the aggrieved party is not under
Section 11(6)
but
such remedy lies elsewhere and under different
provisions of the
Arbitration Act
(
Sections 12
and
),
the context in which the aforesaid view was expressed
cannot be lost sight of. In Antrix16, appointment of the
arbitrator, as per the ICC Rules, was as per the
alternative procedure agreed upon, whereas in Pricol
Ltd.17., the party which had filed the application under

Section 11(6)
of the Arbitration Act had already
submitted to the jurisdiction of the arbitrator. In the
present case, the situation is otherwise.

10. Unless the appointment of the arbitrator is ex facie
valid and such appointment satisfies the Court

16 (
2014) 11 SCC 560
17 (2015) 4 SCC 177
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
exercising jurisdiction under
Section 11(6)
of the
Arbitration Act, acceptance of such appointment as a
fait accompli to debar the jurisdiction under
Section
11(6)
cannot be countenanced in law. In the present
case, the agreed upon procedure between the parties
contemplated the appointment of the arbitrator by the
second party within 30 days of receipt of a notice
from the first party. While the decision in Datar
Switchgears Ltd.18 may have introduced some
flexibility in the time frame agreed upon by the
parties by extending it till a point of time anterior to
the filing of the application under
Section 11(6)
of the
Arbitration Act, it cannot be lost sight of that in the
present case the appointment of Shri Justice A.D.
Mane is clearly contrary to the provisions of the Rules
governing the appointment of arbitrators by ICADR,
which the parties had agreed to abide by in the matter
of such appointment. The option given to the
respondent Corporation to go beyond the panel
submitted by ICADR and to appoint any person of its
choice was clearly not in the contemplation of the
parties. If that be so, obviously, the appointment of
Shri Justice A.D. Mane is non est in law. Such an
appointment, therefore, will not inhibit the exercise of
jurisdiction by this Court under
Section 11(6)
of the
Arbitration Act. It cannot, therefore, be held that the
present proceeding is not maintainable in law. The
appointment of Shri Justice A.D. Mane made beyond
30 days of the receipt of notice by the petitioner,
though may appear to be in conformity with the law

laid down in
Datar Switchgears Ltd18., is clearly
contrary to the agreed procedure which required the
appointment made by the respondent Corporation to
be from the panel submitted by ICADR. The said
appointment, therefore, is clearly invalid in law.”

22. It may be noted here that the aforesaid view of the Designated

Judge in Walter Bau AG3 was pressed into service on behalf of the

appellant in TRF Limited4 and the opinion expressed by the
Designated

18 (2000) 8 SCC 151
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Judge was found to be in consonance with the binding authorities of this

Court. It was observed:-

“32. Mr Sundaram, learned Senior Counsel for the
appellant has also drawn inspiration from the
judgment passed by the Designated Judge of this
Court in Walter Bau AG3, where the learned Judge,
after referring to Antrix Corpn. Ltd16. , distinguished
the same and also distinguished the authority in

Pricol Ltd. v. Johnson Controls Enterprise Ltd.17
and
came to hold that: (Walter Bau AG case3, SCC p. 806,
para 10)

“10. Unless the appointment of the arbitrator is ex
facie valid and such appointment satisfies the
Court exercising jurisdiction under
Section 11(6)

of the Arbitration Act, acceptance of such
appointment as a fait accompli to debar the
jurisdiction under
Section 11(6)
cannot be
countenanced in law. …”

33. We may immediately state that the opinion
expressed in the aforesaid case is in consonance with
the binding authorities we have referred to
hereinbefore.”

23. In TRF Limited4, the Managing Director of the respondent had

nominated a former Judge of this Court as sole arbitrator in terms of

aforesaid Clause 33(d), after which the appellant had preferred an

application under
Section 11(5)
read with
Section 11(6)
of the Act. The

plea was rejected by the High Court and the appeal therefrom on the issue

whether the Managing Director could nominate an arbitrator was decided

in favour of the appellant as stated hereinabove. As regards the issue about

fresh appointment, this Court remanded the matter to the High Court for

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
fresh consideration as is discernible from para 55 of the Judgment. In the

light of these authorities there is no hindrance in entertaining the instant

application preferred by the Applicants.

24. It is also clear from the Clause in the instant case that no special

qualifications such as expertise in any technical field are required of an

arbitrator. This was fairly accepted by the learned Senior Counsel for the

respondent.

25. In the aforesaid circumstances, in our view a case is made out to

entertain the instant application preferred by the Applicants. We, therefore,

accept the application, annul the effect of the letter dated 30.07.2019 issued

by the respondent and of the appointment of the arbitrator. In exercise of

the power conferred by
Section 11(6)
of the Act, we appoint Dr. Justice

A.K. Sikri, former Judge of this Court as the sole arbitrator to decide all

the disputes arising out of the Agreement dated 22.05.2017, between the

parties, subject to the mandatory declaration made under the amended

Section 12
of the Act with respect to independence and impartiality and the

ability to devote sufficient time to complete the arbitration within the

period as per
Section 29A
of the Act. A copy of the Order be dispatched

to Dr. Justice A. K. Sikri at 144, Sundar Nagar, New Delhi - 110003 (Tel.

No.:- 011 - 41802321). The arbitrator shall be entitled to charge fees in

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
terms of the
Fourth Schedule to the Act
. The fees and other expenses shall

be shared by the parties equally.

26. Before we part, we must say that the appointment of an arbitrator

by this Court shall not be taken as any reflection on the competence and

standing of the arbitrator appointed by the respondent. We must place on

record that not even a suggestion in that respect was made by the learned

counsel for the Applicants. The matter was argued and has been

considered purely from the legal perspective as discussed hereinabove.

27. This application is allowed in aforesaid terms.

ARBITRATION APPLICATION NO.34 OF 2019

Perkins Eastman Architects DPC & Anr. …Applicants

VERSUS

HSCC (India) Ltd. …Respondent

28. The basic facts in this application are more or less identical except

that the request for proposal in this case pertains to “comprehensive

planning and designing, including preparation and development of

concepts, master plan for the campus, preparation of all preliminary and

working drawings for various buildings/structures, including preparation of

specifications and schedule of quantities’ for the proposed
All India
Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
Institute of Medical Sciences at Kalyani, West Bengal.”. Clause No.24

titled as “Dispute Resolution” in this case and the communication

addressed by the Applicants are also identical and the response by the

respondent was also similar. In this case also, appointment of a sole

arbitrator was made by the respondent vide communication dated

30.07.2019.

Since the facts are identical and the submissions are common, this

application is disposed of in terms similar to the main matter.

29. In the aforesaid circumstances, we accept the application, annul the

effect of the letter dated 30.07.2019 issued by the respondent and of the

appointment of the arbitrator. In exercise of the power conferred by

Section 11(6)
of the Act, we appoint Dr. Justice A.K. Sikri, former Judge of

this Court as the sole arbitrator to decide all the disputes arising out of the

Agreement dated 22.05.2017, between the parties, subject to the mandatory

declaration made under the amended
Section 12
of the Act with respect to

independence and impartiality and the ability to devote sufficient time to

complete the arbitration within the period as per
Section 29A
of the Act.

A copy of the Order be dispatched to Dr. Justice A. K. Sikri at 144, Sundar

Nagar, New Delhi - 110003 (Tel. No.:- 011 - 41802321). The arbitrator

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
shall be entitled to charge fees in terms of the
Fourth Schedule to the Act
.

The fees and other expenses shall be shared by the parties equally.

ARBITRATION APPLICATION NO.35 OF 2019

Perkins Eastman Architects DPC & Anr. …Applicants

VERSUS

HSCC (India) Ltd. …Respondent

30. The basic facts in this application are more or less identical except

that the request for proposal in this case pertains to “comprehensive

planning and designing, including preparation and development of

concepts, master plan for the campus, preparation of all preliminary and

working drawings for various buildings/structures, including preparation of

specifications and schedule of quantities’ for the proposed All India

Institute of Medical Sciences at Nagpur, Maharashtra.” Clause No.24

titled as “Dispute Resolution” in this case and the communication

addressed by the Applicants are also identical and the response by the

respondent was also similar. In this case also, appointment of a sole

arbitrator was made by the respondent vide communication dated

30.07.2019.

Since the facts are identical and the submissions are common, this

application is disposed of in terms similar to the main matter.

Arbitration Application No.32 of 2019
Perkins Eastman Architects DPC & Anr. v. HSCC (India) Ltd
.
31. In the aforesaid circumstances, we accept the application, annul the

effect of the letter dated 30.07.2019 issued by the respondent and of the

appointment of the arbitrator. In exercise of the power conferred by

Section 11(6)
of the Act, we appoint Dr. Justice A.K. Sikri, former Judge of

this Court as the sole arbitrator to decide all the disputes arising out of the

Agreement dated 22.05.2017, between the parties, subject to the mandatory

declaration made under the amended
Section 12
of the Act with respect to

independence and impartiality and the ability to devote sufficient time to

complete the arbitration within the period as per
Section 29A
of the Act.

A copy of the Order be dispatched to Dr. Justice A. K. Sikri at 144, Sundar

Nagar, New Delhi - 110003 (Tel. No.:- 011 - 41802321). The arbitrator

shall be entitled to charge fees in terms of the
Fourth Schedule to the Act
.

The fees and other expenses shall be shared by the parties equally.

……………………….J.
(Uday Umesh Lalit)

……………………….J.
(Indu Malhotra)
New Delhi;

November 26, 2019.