TaxTMI 
TaxTMI 
2018 (12) TMI 1929
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.... relating to balance work of 214.00 mtrs. span C/C bearings on abutment bridge over river Beas at Harsipattan on Mandi Rewalsar Chandesh-Rakhota Maserah Sarkaghat Tihra Sandhole Alampur Jawalamukhi road for a sum of Rs. 14,29,81,500/-. An agreement was also entered into between the parties and Clause (65) of the General Conditions of Contract contains arbitration clause. The period allowed for completion of work was on or before 04.01.2009. However, extension was granted to the Appellant up to 30.06.2010. The work was completed by the Appellant on 04.06.2011 and payment for the execution of work was made. The Appellant raised a dispute and requested for the appointment of arbitrator vide its letter dated 18.10.2013. Pursuant to the request of the Appellant, the Chief Engineer, HPPWD appointed the "Superintendent Engineer, Arbitration Circle, HPPWD, Solan" as the arbitrator on 30.10.2013 and the said appointment had been made in terms of Clause (65) of the agreement. The arbitrator entered upon reference on 11.11.2013. The Appellant after requesting for the appointment of arbitrator either remained absent from the proceedings or sought adjournments stating that he intends to challen....
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....intment of Superintendent Engineer, Arbitration Circle is as per Clause (65) of the agreement and as per the provisions of law. In response to the contention that Section 12(5) of the Amendment Act, 2015 bars appointment of arbitrator by post, the learned Counsel for the State placed reliance upon Board of Control for Cricket in India v. Kochi Cricket Private Limited and Ors. (2018) 6 SCC 287 and submitted that the provisions of the Amendment Act, 2015 shall apply in relation to arbitral proceedings commenced on or after the date of commencement of the Amendment Act, 2015 and shall not apply to the arbitral proceedings commenced prior to the Amendment Act, 2015 unless the parties otherwise agree. The learned Counsel submitted that the provision contained in Clause (65) of the general conditions of the Contract would not amount to agreement of the parties so as to imply application of the provisions of the Amendment Act, 2015. 7. We have carefully considered the contentions of the parties and perused the impugned judgment and materials on record. The point falling for consideration in this appeal is that in the light of the agreement between the parties in Clause (65) of the genera....
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....r any of the matters in dispute or different. The arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason that (sic) the Chief Engineer, HPPWD at the time of such transfer vacation of office or inability to act shall appoint another person to act as arbitrator in accordance with the terms of the contract. Such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor, it is also a terms of this contract that no person other than a person appointed by the Chief Engineer, HPPWD, should act as arbitrator and if for any reason that is not possible the matter is not be claim in dispute is Rs. 50,000/- (Rupees Fifty Thousand) and above, the arbitrator shall give reasons for the award. Subject as aforesaid the provision of the Arbitration Act, 1940 or any statutory modification or re-enactment thereof and the Rules made thereunder and for the time being shall apply to the arbitration proceeding under this clause. 10. A perusal of Clause (65) makes it apparently clear that it was permissible to appoint a person by designation and this will be evident from....
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....orporations/State-owned companies with private parties/contractors, the terms of the agreement are usually drawn by the government company or public sector undertakings. Government contracts have broadly two kinds of arbitration clauses, first where a named officer is to act as sole arbitrator; and second, where a senior officer like a Managing Director, nominates a designated officer to act as the sole arbitrator. No doubt, such clauses which give the Government a dominant position to constitute the Arbitral Tribunal are held to be valid. At the same time, it also casts an onerous and responsible duty upon the persona designata to appoint such persons/officers as the arbitrators who are not only able to function independently and impartially, but are in a position to devote adequate time in conducting the arbitration. If the Government has nominated those officers as arbitrators who are not able to devote time to the arbitration proceedings or become incapable of acting as arbitrators because of frequent transfers, etc., then the principle of "default procedure" at least in the cases where Government has assumed the role of appointment of arbitrators to itself, has to be applied i....
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.... senior Counsel placed reliance upon Delhi High Court judgment in Ratna Infrastructure Projects Pvt. Ltd. v. Meja Urja Nigam Private Limited wherein interpreting the similar words in a contract, Delhi High Court held that those words satisfy the requirement of Section 26 (amended Act of 2015) of there being an agreement between the parties that the Act as amended with effect from 23.10.2015 will apply and held as under: 22.... The words "any statutory modification or re-enactment thereof and the Rules made thereunder and for the time being in force shall apply to the arbitration..." satisfies the requirement of Section 26 of there being an agreement between the parties that the Act as amended with effect from 23rd October 2015 will apply. The Court is not prepared to draw the fine distinction between 'agree' and 'agreed'. Once the amendment to the Clause clearly stated that all statutory modifications and re-enactments would apply, then there is no need for further agreement in that respect after 23rd October, 2015. The plea of the Respondent in this regard is rejected. 23. The net result is that Section 12(5) as amended with effect from 23rd October....
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.... (1) "the arbitral proceedings" and their commencement is mentioned in the context of Section 21 of the principal Act; (2) the expression used is "to" and not "in relation to"; and (3) parties may otherwise agree. So far as the second part of Section 26 is concerned, namely, the part which reads, "... but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act" makes it clear that the expression "in relation to" is used; and the expression "the" arbitral proceedings and "in accordance with the provisions of Section 21 of the principal Act" is conspicuous by its absence. 17. Immediately after the appointment of the Superintendent Engineer, Arbitration Circle as the sole Arbitrator (30.10.2013), the Appellant preferred Arbitration Petition No. 4049/2013 (28.12.2013) before the High Court Under Section 11(6), 14 and 15 of the Arbitration and Conciliation Act, 1996 for appointment of an independent sole Arbitrator. 18. The High Court placed reliance upon the judgment in Antrix Corporation Limited v. Devas Multimedia Private Limited (2014) 11 SCC 560 and held that when the Superintendent Engineer, Arbitration Circle was appoi....
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....Section 34 of the 1996 Act. In the present case, the Arbitrator has been appointed as per Clause (65) of the agreement and as per the provisions of law. Once, the appointment of an arbitrator is made at the instance of the government, the arbitration agreement could not have been invoked for the second time. 20. As pointed out earlier the Arbitrator has already entered upon reference on 11.11.2013. The Arbitrator had first hearing on 07.12.2013; on which date Appellant-contractor was absent. For the next date of hearing on 13.03.2014 the Arbitrator has recorded the finding that the Appellant-claimant-contractor was absent without any intimation to the Tribunal. In this regard, Mr. Maninder Singh, the learned Senior Council for the Appellant has drawn our attention to the letter dated 12.03.2014 sent by the Appellant requesting for adjournment. Similarly, in the next date of hearings before the arbitrator namely, 03.04.2014, 25.04.2014 and 06.08.2014 the Appellant-contractor did not appear; but only sent the letters requesting for adjournment. On 03.04.2014, the matter was adjourned to 25.04.2014 directing that both parties to come prepared for the next date of hearing on 25.04.20....