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TMI Blog2019 (8) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before the arbitrator, but with such plea, he cannot maintain a suit for declaration and injunction. Though the Trial Court rightly rejected the interim injunction sought for by the first respondent, the same is erroneously reversed by the learned Additional District Judge and such order is confirmed by the High Court, by the impugned order. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, requesting the first respondent once again to come for a kick off meeting. In response to the letter dated 21.11.2011, the first respondent/SIE herein vide letter dated 21.11.2011, expressed his inability to execute the work, unless certain specifications are changed/revised. In the said letter dated 21.11.2011, the first respondent/SIE herein has agreed that the appellant- Company has accepted the offer made by it. Further, vide letter dated 02.12.2011, the respondent/SIE informed the appellant that the work order is not acceptable to them. 4. Subsequently, when the first respondent herein was not coming forward to participate in the kick off meeting and instead addressed a letter dated 02.12.2011, vide letter dated 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Chairman(CMD) of the Company, as an arbitrator. The learned arbitrator initiated the proceeding by issuing notice dated 07.09.2015, asking the appellant, as well as the first respondent to attend the preliminary meeting on 09.10.2015 at Bhubaneswar. 7. On receipt of such notice issued by the arbitrator, the first respondent herein approached the Civil Court and filed Civil Suit No.2610 of 2015 on the file of Senior Civil Judge, Gurgaon, seeking relief of declaration that the appointment of second respondent, as a sole arbitrator, is null and void. Further, relief of permanent injunction was also sought restraining the arbitrator, from proceeding with arbitration proceedings. Pending suit, interim injunction sought for is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, as such, the arbitrator has no jurisdiction to decide the lis between the parties. Mainly, it was a case of the appellant that as much as the acceptance of the bid will conclude the contract and having regard to terms and conditions of NIT and General Conditions of Contract, it is a binding contract between the parties, as such, dispute is to be resolved only by way of arbitration. 11. The learned counsel for the appellant has placed reliance on judgment in the case of Kvaerner Cementation India Limited V. Bajranglal Agarwal and Another 2012(5) SCC, 214. 12. It is a case of the appellant-Company that even if the first respondent disputes the jurisdiction of the arbitrator, it is open for the first respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject and are contrary to judgment of this Court as referred above, the impugned order is liable to be set aside by vacating the injunction orders. 16. At the same time, it is to be noted that when the first respondent has not responded to select one of the members as an arbitrator, from the panel, the appellant has appointed Sri C.R. Pradhan, former Chairman-cum- Managing Director of the company itself as an arbitrator, who has commenced arbitration proceedings. Having regard to the Fifth Schedule introduced, by Act 3 of 2016 to the Act, second respondent cannot be continued as an arbitrator, to adjudicate the lis between the parties. 17. For the aforesaid reasons, we allow this Civil Appeal and set as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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