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TMI Blog2013 (5) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Technology) – Retd., Department of Telecommunications is not a valid appointment in accordance with law. Thus, the prayer made in the petition is allowed. In view of the above, Hon’ble Mr.Justice R.C.Lahoti, Former Chief Justice of India (R/o B-56, Sector 14, Noida, U.P., Mob.No.9868858999) is appointed as sole Arbitrator to adjudicate the disputes between the parties as mentioned in this petition. - Arb. P. No. 100/2013 - - - Dated:- 14-5-2013 - Manmohan Singh,JJ. For the Petitioner : Mr. V. N. Koura, Adv. with Mr. S. Sirish Kumar, Adv. For the Respondent : Mr. Sushil Dutt Salwan, Adv. JUDGMENT Manmohan Singh, J. 1. By this order, I propose to decide the abovementioned petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 filed by the petitioner. 2. The petitioner is a company incorporated under the provisions of Companies Act, 1956 dealing in software and information technology. The respondent is the Government of National Capital Territory of Delhi, Department of Information Technology. 3. The respondent issued Request for Proposal (in short, called the RFP ) dated 2nd April, 2009 inviting bids for Secured Communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ped therein shall vest with the petitioner. 9. It is also submitted that in terms of Schedule V of the MSA, relating to Invoicing and Settlement, for payment for rentals for the TETRA Radio sets, the petitioner is to raise its invoices on a quarterly basis. The project envisaged the provision of the services by the petitioner under the MSA for Legacy Period, including the period of Commonwealth Games 2010 (for 2 months, i.e. September and October 2010) during which, as stated, additional sets were required by various key departments of the respondent. 10. The petitioner further submits that as stated earlier, well prior to the final acceptance of the system, since 1st September, 2010, the TETRA system was in continuous and uninterrupted use by the user departments/ nominees of the respondent, as is apparent from the use logs maintained by the petitioner. The petitioner was, during this period, also required to fund, maintain and operate the TETRA System and Network without break in the same manner as during the Legacy Period in respect of which the respondent was liable to pay the petitioner in terms of the written clarification to the bid document(s) circulated by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. During the course of hearing of the petition, the respondent has also filed the additional affidavit which was taken on record with the consent of the petitioner who has chosen not to give response to the said affidavit. By way of preliminary submissions, it is submitted by the respondent that the petitioner has not come to this Court with clean hands and has suppressed facts. It is stated that the petitioner has breached and defaulted in fulfilling its contractual obligations as contemplated in MSA. Certain decisions have been taken by the competent authorities, which are final and binding upon the parties. Hence, those decisions, which have become final, cannot be referred to arbitration. 15. The respondent denied the allegation that the petitioner has completed all the activities/obligations as contemplated in the agreement. It is stated that almost every department, specially the Delhi Police, has lodged complaints against the petitioner vis- -vis its services, provided under the agreement. In fact, for a substantially long period i.e. from November, 2010 up to February, 2012 the petitioner was unable to provide the services in terms of the contract and hence, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in context of the MSA signed between the parties on 29th December, 2009 for Secured Communications Network (TETRA) Project. The details of the disputes to be resolved are also given in the said order dated 10th April, 2013. As far as these details are concerned, learned counsel for the petitioner agrees for the same to be correct. However, the petitioner is not agreeable for the appointment of Sh.J.K.Roy as Arbitrator. The simple submission of the learned counsel for the petitioner is that the respondent has lost its right to appoint the Arbitrator as per its choice, after the expiry of 30 days from the date of receipt of notice dated 29th December, 2012. Thus, this Court may appoint an independent sole Arbitrator. He has relied upon certain judgments in support of his submission. 19. Mr.Salwan, learned counsel for the respondent, on the other hand, states that the benefit of 30 days cannot be derived by the petitioner, as during this period, the conciliation proceedings between the parties were going on. In support of his contention, he has referred various letters and communications between the parties, in order to show that after the issuance of the notice, there were var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by the respondent to make the payment, rather the respondent issued a letter dated 17th December, 2012 indicating the petitioner to levy penalty of 6%. Despite of that, entire payment was made by the respondent leaving a balance. Therefore, the petitioner has no alternative but to press the relief claimed in the petition. It is also pertinent to mention that the respondent itself has appointed the sole Arbitrator to adjudicate the disputes between the parties. The said action of the respondent defeats its own argument. 22. In Datar Switchgears v. Tata Finance Ltd., (2000) 8 SCC 151, the Supreme Court explained as under:- 19. So far as cases falling Under Section 11(6) are concerned, such as the one before us, no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed Under Section 11(4) and Section11(5) of the Act. In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an arbitrator and the opposite party does not make an appointment within 30 days of the demand, the right to appointment does not get automatically forfeited after expiry of 30 days. If the opposite party makes a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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