TaxTMI 
TaxTMI 
2015 (1) TMI 1494
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....tter/notice. 2. The arbitration clause in the agreement between the parties would require to be specifically noticed and, therefore, is being extracted herein below: "Modified Sub-Clause 67.3 Arbitration Sub-clause 67.3 is modified to read as follows: Any dispute, in respect of which the Recommendation(s), if any, of the Board has not become final and binding pursuant to Sub-clause 67.1, shall be finally settled by arbitration as set forth below. The Arbitral Tribunal shall have full power to open-up, review and revise any decision, opinion, instruction, determination, certificate or valuation of the Engineer and any Recommendation(s) of the Board related to the dispute: I) A dispute with and Indian contractor shall be finally settled by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996 or any statutory amendment thereof. The Arbitral Tribunal shall consist of 3 Arbitrators, one each to be appointed by the Employer and the Contractor. The third arbitrator shall be chosen by two arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of failure of the two arbitrators, appoin....
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....ternative Dispute Resolution in India, both in cases of foreign contractors as well as Indian Contractors, shall appoint an arbitrator. A certified copy of the order of the International Centre for Alternative Dispute Resolution in India making such and appointment shall be furnished to each of the parties. VI) Arbitration proceeding s shall be held at Mumbai, India, and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English. VII The decision of the majority of the arbitrators shall be final and binding upon both parties. The cost and the expenses of arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation, etc. of its case as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself." 3. A reading of the aforesaid clause of the agreement would go to show that after one of the parties thereto invokes the arbitration clause; appoints its arbitrator and thereafter give notice to the other party to appoint its arbi....
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....point an arbitrator in pursuant of rule 5(2) or 5(3), the ICADR will follow the following procedure- (i) the ICADR will communicate to each party a list containing the names, addresses, nationalities and a description of qualifications and experience of at least three individuals from the panel of arbitrators; (ii) within thirty days following the receipt of the list, a party may delete any name to which he objects and after re-numbering the names in the order of his preference, return the list to the ICADR; (iii) on receipt of the list returned by the party, the ICADR will appoint the arbitrator from the list taking into account the order of preference indicated by the parties; (iv) if for any reason the appointment cannot be made according to the procedure specified in clauses (i) to (iii), the ICADR may appoint the arbitrator from the panel of arbitrators. (2) In appointing an arbitrator the ICADR will have regard to the matters referred to in rule 5(5)(c) and will carefully consider the nature of the dispute in order to include in the list, persons having appropriate professional or businiess experience, language ability and national....
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....ality and independence of the arbitrator purported to be appointed by the respondent Corporation. 6. Mr. Mukul Rohatgi, learned Attorney General, appearing for the the respondent Corporation, on the other hand, has submitted that the present petition would not be maintainable inasmuch as an Arbitrator has already been appointed and any exercise of power under Section 11(6) of the Arbitration Act, at this stage, would operate as an ouster of the said Arbitrator. It is submitted that the remedy of the petitioner, if any, lies elsewhere and under different provisions of the Arbitration Act and not by way of an application under Section 11(6) thereof. Reliance has been placed on the decision of this Court in Antrix Corporation Limited versus Devas Multimedia Private Limited [(2014) 11 SCC 560] and another recent pronouncement of this Court dated 16th December, 2014 in Pricol Limited versus Johnson Controls Enterprise Ltd. & Ors. [Arbitration Case (Civil) NO.30 of 2014]. 7. Alternatively, it has been urged by Mr.Rohatgi that as the appointment of Mr. Justice A.D. Mane was made before the present application/petition was filed in this Court, the said appointment would be valid in l....