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TMI Blog2015 (1) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... in the agreement between the parties would require to be specifically noticed and, therefore, is being extracted herein below: "Modified Sub-Clause 67.3 Arbitration Sub-clause 67.3 is modified to read as follows: Any dispute, in respect of which the Recommendation(s), if any, of the Board has not become final and binding pursuant to Sub-clause 67.1, shall be finally settled by arbitration as set forth below. The Arbitral Tribunal shall have full power to open-up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer and any Recommendation(s) of the Board related to the dispute: I) A dispute with and Indian contractor shall be finally settled by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996 or any statutory amendment thereof. The Arbitral Tribunal shall consist of 3 Arbitrators, one each to be appointed by the Employer and the Contractor. The third arbitrator shall be chosen by two arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of failure of the two arbitrators, appointed by the parties to reach upon a consensus within a period of 30 days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , shall appoint an arbitrator. A certified copy of the order of the International Centre for Alternative Dispute Resolution in India making such and appointment shall be furnished to each of the parties. VI) Arbitration proceeding s shall be held at Mumbai, India, and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English. VII The decision of the majority of the arbitrators shall be final and binding upon both parties. The cost and the expenses of arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its case as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself." 3. A reading of the aforesaid clause of the agreement would go to show that after one of the parties thereto invokes the arbitration clause; appoints its arbitrator and thereafter give notice to the other party to appoint its arbitrator, if the same is not done within 30 days or if the two arbitrators appointed by both sides fail to nominate a third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of qualifications and experience of at least three individuals from the panel of arbitrators; (ii) within thirty days following the receipt of the list, a party may delete any name to which he objects and after re-numbering the names in the order of his preference, return the list to the ICADR; (iii) on receipt of the list returned by the party, the ICADR will appoint the arbitrator from the list taking into account the order of preference indicated by the parties; (iv) if for any reason the appointment cannot be made according to the procedure specified in clauses (i) to (iii), the ICADR may appoint the arbitrator from the panel of arbitrators. (2) In appointing an arbitrator the ICADR will have regard to the matters referred to in rule 5(5)(c) and will carefully consider the nature of the dispute in order to include in the list, persons having appropriate professional or businiess experience, language ability and nationality. (3) All appointments on behalf of the ICADR will be made by the Secretary-General and in his absence by such member of the Governing Council as is designated by the Chairperson: Provided that where the Secretary-General is to be appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable inasmuch as an Arbitrator has already been appointed and any exercise of power under Section 11(6) of the Arbitration Act, at this stage, would operate as an ouster of the said Arbitrator. It is submitted that the remedy of the petitioner, if any, lies elsewhere and under different provisions of the Arbitration Act and not by way of an application under Section 11(6) thereof. Reliance has been placed on the decision of this Court in Antrix Corporation Limited versus Devas Multimedia Private Limited [(2014) 11 SCC 560] and another recent pronouncement of this Court dated 16th December, 2014 in Pricol Limited versus Johnson Controls Enterprise Ltd. & Ors. [Arbitration Case (Civil) NO.30 of 2014]. 7. Alternatively, it has been urged by Mr.Rohatgi that as the appointment of Mr. Justice A.D. Mane was made before the present application/petition was filed in this Court, the said appointment would be valid in law. It is submitted that the requirement of appointment within 30 days of receipt of a notice is only in cases covered under Section 11(4) and 11(5) of the Arbitration Act, whereas in cases falling under Section 11(2) read with Section 11(6) of the Arbitration Act, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment, 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 Ltd. (supra), is clearly contrary to the agreed procedure which required the appointment made by the respondent Corporation to be from the panel submitted by the ICADR. The said appointment, therefore, is clearly invalid in law. 10. Consequently, we allow the present petition and appoint Shri Justice S.R. Sathe, a retired judge of the Bombay High Court as the Arbitrator on behalf of the respondent Corporation. Both the Arbitrators shall now name the third Arbitrator forthwith whereafter the arbitration proceedings will be held and concluded as expeditiously as possible. The terms of appointment of Shri Justice S.R. Sathe as the Arbitrator on behalf of the respondent Corporation will be settled in consultation with the respondent Corporation. 11. The arbitration petition is disposed of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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