TaxTMI 
TaxTMI 
2022 (7) TMI 1238
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and dissatisfied with the impugned judgment and order dated 15.09.2021 passed by the High Court of Judicature at Allahabad in Arbitration Application No. 15 of 2021, by which, while allowing the application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") filed by the appellant herein - original applicant, the High Court has directed respondent herein to send a fresh panel of four retired officers in terms of clause 64(3)(b) of the General Conditions of Contract (hereinafter referred to as the "GCC") and thereafter, the appellant herein - original applicant shall select two from the four suggested names and thereafter the respondent shall constitute the Arbitral Tribunal in terms of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e GCC, the original applicant before the High Court has preferred the present appeal. 3. Shri Ramesh Singh, learned Senior Advocate appearing on behalf of the appellant herein has vehemently submitted that the High Court has committed a serious error in not appointing the sole arbitrator in exercise of powers vested under Section 11(6) of the Act. 3.1 It is submitted that the parties to the agreement are governed by the arbitration agreement/clause in terms of the clause 32 of the agreement. It is submitted that despite invocation of the arbitration clause in terms of the agreement the respondent failed to appoint an arbitrator. It is contended that therefore the respondent forfeited its right to appoint an arbitrator under the agreement ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... also not in a position to satisfy the Court as to how the General Conditions of Contract shall be applicable with respect to the agreement between the parties which has been entered into much prior to the GCC coming into force i.e., July, 2020 and that neither is there any reference to the GCC in the original agreement nor the GCC has been signed by the parties. Therefore, he is unable to support the impugned judgment and order passed by the High Court directing to constitute an Arbitral Tribunal as per clause 64(3)(b) of the GCC. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. It is not in dispute that the parties to the agreement agreed to resolve the dispute as per clause 32 of the orig....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... appointed by the authority as aforesaid should act as arbitrator and that if for any reason that is not possible, the matter is not be referred to arbitration at all. ........." The appellant and the respondent being signatories to the agreement are bound by the aforesaid arbitration clause/arbitration agreement. As the dispute arose between the parties, the appellant invoked the arbitration clause in terms of the agreement. However, the respondent - General Manager/Railway failed to appoint the arbitrator in terms of clause 32, reproduced hereinabove. That thereafter, the appellant herein approached the High Court for appointment of the sole arbitrator in exercise of powers under Section 11(6) of the Act. Once the dispute has arisen bet....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the application before the High Court for appointment of a sole arbitrator in exercise of powers under Section 11(6) of the Act. The Chief Justice or his nominee thus was required to appoint the arbitrator under Section 11(6) of the Act. 7. By the impugned judgment and order and while allowing the application under Section 11(6) of the Act instead of appointing the arbitrator in exercise of powers under Section 11(6) of the Act, the High Court has directed to constitute an Arbitral Tribunal in terms of clause 64(3)(b) of the GCC. It is not in dispute that neither the GCC was signed by the parties nor the GCC was made part of the agreement between the parties. There is no reference to the GCC in the main agreement entered into between the p....