Mr. H.C. Shivaramu, Advocate for Review Petitioner Mr. R. Nataraj, Advocate for Respondent
1. I.A.1/2018 for condonation of delay in filing the Review Petition is allowed and delay is condoned.
2. Heard the learned counsel for the parties.
3. This Review Petition has been filed by the Applicant- JNNURM, Mysore City Corporation, Mysore seeking a review and recall of the Order passed by this Court on 19/01/2018 appointing Mr. R.B. Garasangi, a former District Judge of Karnataka Judiciary to act as an Arbitrator in the present case under Section 11 of the Arbitration and Conciliation Act, 1996.
4. The learned counsel for the Review Petitioner, Mr. H.C. Shivaramu, has urged before the Court that in Clause 4.1 quoted by this Court in the Order dated 19/01/2018, the Annexure to Clause 4.1 gives the List Date of Order 30-07-2018 R.P.No.222/2018 In C.M.P.No.211/2015 The Superintending Engineer, JNNURM Vs. M/s. Chabbras Associates of Organizations, who are considered as Appointing Authorities for Appointment of Arbitrators and the said Annexure was not quoted in the Clause 4.1. The same is quoted below for ready reference now:- ANNEXURE LIST OF ORGANIZATIONS WHO ARE CONSIDERED AS APPOINTING AUTHORITY FOR APPOINTMENT OF ARBITRATORS
1. Indian Council of Arbitration, New Delhi;
2. International Centre for Alternative Disputes Resolution (India);
3. Indian Roads Congress;
4. Indian Building Congress;
5. Indian Institute of Bridge Engineers;
6. Indian Institute of Public Health Engineers;
7. Institute of Water Works. Date of Order 30-07-2018 R.P.No.222/2018 In C.M.P.No.211/2015 The Superintending Engineer, JNNURM Vs. M/s. Chabbras Associates
5. He therefore, submitted that only these specific Institutions could appoint the Arbitrator in the present Contract.
6. He also relied upon the decision of the Honble Supreme Court in the case of TRF Ltd. Vs. Energo Engineering Projects Ltd. A.I.R. 2017 SC 3889 para
7. He submitted that a person who is not eligible to himself act as an Arbitrator cannot even nominate another person as the Arbitrator.
8. The opposite counsel opposed the aforesaid submissions and prayed for the dismissal of the present Review Petition.
9. Having heard the learned counsels, this Court is of the opinion that there is no merit in the present Review Petition and the Order dated 19/01/2018 does not suffer from any infirmity or apparent mistake which calls for a review or recall of the said Order. Date of Order 30-07-2018 R.P.No.222/2018 In C.M.P.No.211/2015 The Superintending Engineer, JNNURM Vs. M/s. Chabbras Associates
10. For Appointment of Arbitrators under the Amended law after 23/10/2015, the only two requirements have to be looked into by the Courts under Section 11 of the Act and they are:-
[1] Existence of a valid Arbitration Clause;
[2] Existence of an Arbitral Dispute
11. This position has been discussed in detail by this Court in the case of N.K. Developers Vs. Concord India Limited in C.M.P.No.98/2008, disposed of on 26-10-2017 .
12. The case law relied upon by the learned counsel for the Review Petitioner is of little help. There is no question of nominating any Arbitrator in the present case nor the other argument raised for review that only the specified Organizations in the aforesaid Annexure to Clause 4.1 could appoint the Arbitrator, can curtail the power of this Court under Section 11 of Date of Order 30-07-2018 R.P.No.222/2018 In C.M.P.No.211/2015 The Superintending Engineer, JNNURM Vs. M/s. Chabbras Associates the Act to appoint the Arbitrator. The Notice for Appointment of the Arbitrator was duly given directly by the contractor petitioner to the JNNURM, Mysore City Corporation and since thereafter the parties failed to appoint the Arbitrator under the mutually agreed procedure in the Agreement, this Court was moved under Section 11 and it appointed the aforesaid former District Judge, Mr.R.B. Garasangi to act as an Arbitrator.
13. There is no mistake apparent in the said Order and therefore, the present Review Petition filed by Respondent JNNURM, Mysore City Corporation is found to be devoid of merit and the same is liable to be dismissed and accordingly, it is dismissed. No costs. Sd/- JUDGE BMV*
Comments