Court No. - 76 Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 114 of 2019
Applicant :- M/S Globe Ecologistics Private Limited. Opposite Party :- Diesal Locomotive Works, Varanasi And Another Counsel for Applicant :- Rahul Mishra
Counsel for Opposite Party :- Rajnish Kumar Rai Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Rahul Mishra, learned counsel for applicant and Sri Rajnish Kumar Rai, Advocate for respondents.
2. Sri Rahul Mishra, learned counsel appearing for applicant submits that subsequent to filing of application before this Court, respondent- Railway Department has appointed Arbitral Tribunal. However, he has opposed the constitution of said Tribunal on the ground that it is not as per general conditions of agreement. He also raised objection on the right of Railway Department to even constitute the Arbitral Tribunal after present application is preferred.
3. Sri Rajnish Kumar Rai, learned counsel appearing for Railway Department, has relied on a judgment of Supreme Court in Central Organisation for Railway Electrification vs. ECI-SPIC-SMO-MCML (JV) A Joint Venture Company 2019 SCC OnLine SC 1635 and submits that right of respondents to constitute Arbitral Tribunal is not extinguished on filing of application under Section 11(6) of Arbitration and Conciliation Act, 1996 (hereinafter referred to as
"Act, 1996").
4. Heard learned counsel for parties and perused the record.
5. The issue of "failure to act in terms of contract in not responding within the 30 days from the date of request in the case of contract with Department of Railways" is considered by Supreme Court in Central Organisation for Railway Electrification vs. ECI- Neutral Citation No. - 2020:AHC:58503
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SPIC-SMO-MCML (JV) A Joint Venture Company (supra) wherein it has been held that:
"…..The respondent is not justified in contending that the appointment of Arbitral Tribunal has not been made before filing of the application under Section 11 of the Act and that the right of the appellant to constitute Arbitral Tribunal is extinguished on filing of the application under Section11(6) of the Act."
6. In view of above no case is made out for appointment of an independent Arbitrator in the present case. Prayer made in the application is rejected.
7. However, parties are at liberty to raise objections, if any, before Arbitral Tribunal ,including its constitution, in accordance with law.
8. With aforesaid observation, the application stands disposed of. Order Date :- 7.7.2020
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