TaxTMI 
TaxTMI 
2018 (3) TMI 1694
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....nstruction, Operation and Maintenance of Gurgaon-Faridabad and Ballabhgarh-Sohna Roads in Faridabad and Gurgaon Districts on Built, Operate and Transfer (BOT) basis. Concession agreement was signed on 31.01.2009 with construction period of 24 months having concession period of 17 years starting from appointed date i.e. 31.05.2009 i.e. 120 days from date of signing of concession agreement. Respondent No.1-M/s G.F. Toll Road Pvt. Ltd. issued notice under Clause 39.1 of Concession Agreement regarding compensation for alleged material breach in the contract. The matter was referred to an independent consultant, who was to further act in accordance with terms of concession agreement. The independent consultant, thereafter, issued letter dated 27.02.2014. Finally, respondent No.1, vide letter dated 14.02.2015, sought reference of the dispute in accordance with clause 39.1 (b) of the Concession Agreement. However, respondent No.1 sent a notice dated 30.03.2015, to respondent No.2-Registrar Indian Council of Arbitration (for short 'ICA') to commence arbitration. Pursuant to the said notice, ICA sent a letter dated 09.04.2015, directing the petitioner to deposit Rs. 51,80,595/- t....
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....etitioner's nominee arbitrator. Further, the latter dated 30.10.2015 also stated that the petitioner had never ever responded positively to opportunities give by the Council for change and substitution of its nominee arbitrator, as such, it (Council) was in the process of appointing arbitrator in place of Mr. M.K. Aggarwal, under the recommendation of Arbitration Committee. Vide letter dated 16.11.2015, State of Haryana-petitioner requested the ICA to give 30 days' time to do the needful. Upon this, vide letter dated 23.11.2015, ICA had informed the petitioner that Arbitration Committee had already appointed nominee arbitrator on behalf of State of Haryana-petitioner as well as the Presiding Arbitrator and the Council was waiting consent letters from the appointed arbitrators, as such, 30 days' time, sought for vide letter dated 16.11.2015, could not be granted. In the application under Section 14 of the Act, grouse of the State was that they had never been intimated about appointment of arbitrator by the Arbitration Committee prior to 23.11.2015. Nomination of respondent No.5 and constitution of the Arbitral Tribunal by ICA was not legal & valid, as such, mandate of....
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....een constituted under Rule 24 of the ICA Rules and the same was communicated by respondent No.2 to all the concerned parties. First meeting of the constituted Tribunal was held on 20.02.2016 and in that hearing, both the claimant and respondent had appeared and a time schedule for completion of pleadings was set down. Thereafter, notice of the present application under Section 14 of the Act was received by respondent No.2. After hearing learned counsel for the parties, the Additional District Judge, Chandigarh dismissed the above said application. State of Haryana-petitioner had taken a plea that prior to invoking the arbitration clause, respondent No.1 had not exhausted the dispute resolution clause for amicable settlement. While considering this aspect, it has been held that sufficient efforts were made to settle the dispute with amicable settlement and in pursuance thereof, independent consultant was appointed. When no such amicable settlement took place, at that stage, respondent No.1 submitted statement of claim dated 30.03.2015 as per Rule 15 of the ICA Rules of Arbitration, stating therein that dispute had not been resolved by way of mutual settlement. Further, objections....
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....on of the Tribunal, before the Tribunal itself. With these observations, the Additional District Judge, Chandigarh has dismissed the application filed by the petitioner. Learned counsel for the petitioner, in support of his contentions, has referred to the judgment passed by Hon'ble the Supreme Court in C.M.C. Ltd. Vs. Unit Trust of India and others, 2007 (2) RCR (Civil) 335. However, the judgment referred to by learned counsel for the petitioner is not applicable to the facts of the present case. In this case, it has been held that once both the parties agree to resolve their dispute by way of arbitration and they retain the right to nominate respective arbitrators, then there was no obligation on any of the parties to choose only an arbitrator as per the rules of Arbitration of the Indian Council of Arbitration or to proceed only in terms of those Rules for appointment of an arbitrator. The aforesaid judgment was given in the backdrop of arbitration agreement between the parties, where parties had retained themselves to name arbitrator of their own, who in turn had to nominate a Presiding Arbitrator, so as to constitute an Arbitral Tribunal. The power to appoint has not....
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.... of the Indian Council of Arbitration." A perusal of the above two rules shows that there should be a Board of three Arbitrators of whom, each party shall select one and the third arbitrator shall be appointed in accordance with the Rules of Arbitration of the Indian Council of Arbitration. There is no rule with regard to objections of the nominee. If, there is an objection regarding name of arbitrator by one of the parties, in this backdrop, Rule 39.2.1 shall be applicable. As per this rule, the arbitration is to be held as per the Indian Council of Arbitration. The provisions are silent as to what will be the procedure, if there is an objection to the appoint of arbitrator by one of the parties. In the present case, when objection was raised with regard to the name of Mr. M.K. Aggarwal, the Registrar under Rule 27 (b) of the Indian Council of Arbitration Rules, gave 15 days' time to petitioner-State of Haryana, PWD (B&R) Department to withdraw the name of Mr. M.K. Aggarwal and send a substituted name. Thereafter, a number of letters were written. When no response was received from the PWD department (petitioner), a new arbitrator was appointed by the Registrar in con....