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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 ..... 87 months after the formal acceptance of the said Network ("the Legacy Period"). 4. Pursuant to the bid by the petitioner, the respondent awarded the contract for the aforesaid work to the petitioner, leading to the execution of the Master Service Agreement dated 29th December, 2009 (hereinafter referred to as the "MSA") for "Establishment of Secured Communication Network (TETRA) for Commonwealth Games (CWG) 2010 and Legacy Period thereafter on Wet Lease Basis" between the President of India through the Secretary, Department of Information Technology (IT) of the respondent and the petitioner. The gross estimated value of the aforesaid contract is Rs. 99,81,08,555/-. 5. It is submitted that the execution of the CWG 2010 TETRA Project comprised three broad areas of activity:- (i) Delivery and installation of infrastructure. (ii) Training and familiarization of Radio users in the various departments. (iii) Programming of radios as per Fleet Mapping Data of user departments and delivery of radio sets. 6. It is further submitted that in discharge of its contractual obligations, the petitioner had completed all the aforesaid three activities well before the start of the Commonwealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A System was finally accepted. The petitioner raised invoices for such use on all the user departments as stipulated in the MSA. However, despite Circular No.F.7(11)/2008/IT/2369-71 dated 19th April, 2012 issued by the respondent to the various user departments for payment of rental of the TETRA sets used by them both for the period prior to as well as during the Legacy Period, payment to the petitioner has not been forthcoming. 12. It is further submitted that in the meeting held on 19th November, 2012 under the Chairmanship of the Chief Secretary, GNCT of Delhi, it was decided that, based on the recommendations of TCIL (Project Management Consultant, an agency appointed by the respondent), the user departments would make payment for the period between 1st September, 2010 to 29th February, 2012 (i.e. before the commencement of Legacy Period). Despite the aforesaid decision, TCIL, till date, has not given its recommendations nor has any payment been made by the user departments for the said period. It is further contended by the petitioner that the aggregate value of the invoices for the period between from 1st September, 2010 to 1st March, 2012, is Rs. 30,11,34,498/-. However, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submitted that the present petition is misconceived and pre-mature. In terms of Article 10 of the MSA, in case of any dispute or difference whatsoever arising between the parties to the contract, parties shall in the first instance try to settle the same amicably through discussions to be carried out within 30 days of serving of a written notice by one party to the other clearly setting out the dispute in question. In terms of the said clause, only after the dispute cannot be amicably resolved, the matter has to be referred to arbitration. The petitioner has approached the respondent in terms of the said clause and the issues raised by the petitioner are under deliberation in a series of meetings which have been held and are continuing to be held. 17. In nut-shell, the case of the petitioner is that the respondent has recommended to the user departments a deduction of 6% from the bills payable for the period, without indicating the basis on which the penalty of 6% has been levied. It is stated by the petitioner that the petitioner has complied with all the terms and conditions of MSA, therefore, the question of any contractual penalty does not arise, and any penalty levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection to his appointment as sole Arbitrator to adjudicate disputes between the parties. In any case, if this Court is not satisfied with his appointment, being a technical subject, an expert person be appointed as Arbitrator. 20. Mr.V.N.Koura, learned counsel appearing on behalf of the petitioner has informed the Court that as far as the conciliation proceedings between the parties are concerned, the same were not with regard to the payment payable by the respondent to the petitioner. Most of the said meetings were held in order to improve the coverage and performance of TETRA System. It is not denied by him that the said meetings were attended by the representative of the petitioner. He submits that the appointment of Sh.J.K.Roy is not acceptable to his client, mainly on the reason that the said appointment was made after the expiry of period of 30 days after the receipt of notice and during the pendency of present proceedings. As the respondent has lost right for such appointment, therefore, this Court may appoint an independent sole Arbitrator to decide the disputes between the parties. He also submits that no technical person is necessary to be appointed. If necessary, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is not forfeited but continues, but an appointment has to be made before the former files application Under Section 11 seeking appointment of an arbitrator. Only then the right of the opposite party ceases. We do not, therefore, agree with the observation in the above judgments that if the appointment is not made within 30 days of demand, the right to appoint an arbitrator Under Section 11(6) is forfeited. 20. In the present case the respondent made the appointment before the appellant filed the application Under Section 11(6) though it was beyond 30 days from the date of demand. In our view, the appointment of the arbitrator by the respondent is valid and it cannot be said that the right was forfeited after expiry of 30 days from the date of demand. 21. We need not decide whether for purposes of Sub-clauses (4) and (5) of Section 11, which expressly prescribe 30 days, the period of 30 days is mandatory or not." The decision in Datar Switchgears (supra) was further affirmed in Punj Lloyd v. Petronet MHB Ltd., (2006) 2 SCC 151. 23. In the case of Sikka Promoters Pvt. Ltd. Vs. Municipal Corporation of Delhi, decided on 17th November, 2011 in Arb.P.No.106/2011 and I.A.No.581 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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