PRIMETALS TECHNOLOGIES INDIA PRIVATE LIMITED v. RASHTRIYA ISPAT NIGAM LIMITED

APHC010493042023

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

ARBITRATION APPLICATION NO: 70 of 2023 Bench

Sr.No:-85

[3441]

Primetals Technologies India Private Limited ...Applicant Vs.

Rashtriya Ispat Nigam Limited ...Respondent

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Aishwarya Nagula, Advocate(s) for Petitioner(s) Vivek Chandra Sekhar S, Advocate(s) for Respondent(s)

CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR

DATE : 26^th July, 2024.

P C :

The present petition has been filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') for reference of the disputes arising out of and in connection with three contracts, entered into between the petitioner and the respondent, all dated 24.12.2008, bearing Nos.VSP / CONT / 6.3 MTPA EXPN / SBM / INDR / M - 949 / 2008-2009, VSP / CONT / 6.3 MTPA EXPN / SBM / FOR / M - 951 / 2008-2009, VSP / CONT / 6.3 MTPA EXPN / SBM / SUV & ERC / M-953 / 2008-2009, to an arbitrator.

2. It is not denied that in all the three contracts, entered into between the parties, the disputes are envisaged to be settled through the

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mechanism of arbitration. Article 8 in each of the three agreements, envisages as under:

"ARTICLE 8

All disputes arising out of or in any way connected with this Agreement shall be deemed to have arisen in Visakhapatnam. Jurisdiction of Courts shall be only at Visakhapatnam. Venue of Arbitration shall be in Visakhapatnam. However, the disputes, if any, shall be settled by Arbitration mentioned in clause no 34.2 of General Conditions of Contract referred to as in the Contract No. VSP/ CONT/6.3 MTPA EXPN/ SBM/ COV/ M947/2008-2009 dated. 24/02/2008. The language of Arbitration shall be English."

3. Clause 34 of the General Conditions of Contract, provides for as under:

"34.0 SETTLEMENT OF DISPUTES:

34.1 …

34.2 Settlement of Disputes by Arbitration: All disputes and differences, whatsoever, arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Contract or Breach thereof shall be settled between the Employer and the Contractor amicably.

If however, the Employer and the Contractor are not able to resolve their disputes and differences amicably as aforesaid, such disputes and differences whatsoever arising between the parties out of or relating to the construction, meaning and operation or effect of this contract or the breach thereof shall be settled by Arbitration. Each party shall appoint its arbitrator. The two arbitrators so appointed

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shall appoint the third arbitrator who shall be the presiding arbitrator.

For Indigenous Contract, the arbitration shall be governed by the provisions of Arbitration and Conciliation Act 1996 and the statutory modifications to the said Act…."

4. Disputes having arisen between the parties in connection with and arising out of the aforementioned three contracts, a notice, dated 16.06.2023, was served upon the respondent by the petitioner, invoking the arbitration clause and by virtue of the said notice, the respondent was informed that they had nominated Justice Kurian Joseph (Retired) as their arbitrator in all the three cases and therefore, called upon the respondent to nominate an arbitrator, within a period of thirty days. The present petition has been filed on the failure of the respondent to nominate their arbitrator, in terms of the Article 8 read with clause 34 of the GCC.

5. In the counter-affidavit, which has been filed on behalf of the respondent, it is not denied that there does exist a dispute between the parties arising out of and in connection with the three contracts and that the same are required to be resolved through the mechanism of arbitration.

6. The respondent, in fact, has expressed no objection for appointment of an arbitrator by this Court on behalf of the respondent.

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7. However, considering the claim amount, a suggestion was made by learned counsel for the petitioner, that an arbitral tribunal consisting of three arbitrators would create an additional financial burden on the parties and therefore, suggested that a sole arbitrator be appointed, to resolve the disputes between the parties.

8. Whereas learned counsel for the respondent, upon instructions, agreed to the appointment of a sole arbitrator, instead of the arbitral tribunal, which is otherwise envisaged under the contract/GCC. He, however, suggested a few names, out of which one could be appointed as a sole arbitrator in the matter.

9. However, considering the entire issue, in my opinion, Justice Kurian Joseph, would be an ideal choice, even as a sole arbitrator, notwithstanding the fact that he was earlier nominated as an arbitrator by one of the parties to the dispute. At this stage, learned counsel for the respondent, formally gives his consent to the appointment of Justice Kurian Joseph (Retired) as a sole arbitrator.

10. Be that as it may, the present Arbitration Application, is accordingly allowed, Justice Kurian Joseph, former Judge of the Supreme Court, is appointed as a sole Arbitrator, who shall enter upon the reference and adjudicate upon the disputes between the parties and render the Award within the time prescribed. The parties shall be free to file detailed claims

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and counter-claims before the Arbitrator, who shall be entitled to fix his fee in consultation with the parties, keeping in view the provisions of the Act of 1996. No order as to costs.

Pending miscellaneous applications, if any, shall stand closed. A copy of this order be communicated to the learned Arbitrator, on the address mentioned herein below:

Justice Kurian Joseph,

Building No.50, First Floor,

Poorvi Marg, Vasant Vihar,

New Delhi - 110057.

DHIRAJ SINGH THAKUR, CJ.

SSN