TaxTMI 
TaxTMI 
2024 (9) TMI 1751
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.....M.P. (T) (COMM.) 88/2024 IA 38680/2024 in O.M.P. (T) (COMM.) 89/2024 IA 38682/2024 in O.M.P. (T) (COMM.) 90/2024 4. One of the issues that has arisen for consideration in this case is whether the arbitration clause in the agreement between the parties is hit by the judgment of the Supreme Court in Perkins Eastman Architects DPC v HSCC (India) Ltd (2020) 20 SCC 760, Bharat Broadband Network Ltd v United Telecoms Ltd (2019) 5 SCC 755 and Haryana Space Application Centre (HARSAC) v Pan India Consultants Pvt Ltd (2021) 3 SCC 103 5. Mr. Nandrajog, learned Senior Counsel for the petitioner would submit that it is. Ms. Beenashaw N. Soni, learned Counsel for the respondent would contend otherwise. 6. This order deliberates on the said issue and also, in the process, disposes of IA 38681/2024, IA 38680/2024 and IA 38682/2024, preferred by the petitioner in OMP (T) (Comm) 88/2024, OMP (T) (Comm) 89/2024 and OMP (T) (Comm) 90/2024 respectively. 7. These are petitions under Section 14(2) read with 14(1)^4 of the Arbitration and Conciliation Act 1996 "the 1996 Act", hereinafter, seeking termination of the mandate of the arbitral tribunal presently in seisin of the dispute bet....
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....0 days of expiry of the first mentioned period of thirty days failing which it shall be deemed that there are no dispute or difference between the Employer and the Contractor. 38.3 In case of dispute or difference between the Employer and the Contractor, if the Employer intends to go for Arbitration, he shall notify such intention to the Contractor. 39. Arbitration 39.1 All disputes or difference in respect of which the decision, if any, of the Project Manager and /or the Head of the Implementing Authority has not become final or binding as aforesaid shall be settled by arbitration in the manner provided herein below. 39.2 The arbitration shall be conducted by three arbitrators, one each to be nominated by the Contractor and the Employer and the third to be appointed by both the arbitrators in accordance with the Indian Arbitration Act. If either of the parties fails to appoint its arbitrator within sixty (60) clays after receipt of a notice from the other party invoking the Arbitration clause, the arbitrator appointed by the party invoking the arbitration clause shall become the sole arbitrator to conduct the arbitration. 39.3 The langu....
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.... as necessary and proper parties had not been impleaded, the contract having been executed with the joint venture and (iv) the remedy of an appeal to the Project Manager, in the event of a conciliation failing, had not been exhausted before arbitration was invoked. 16. On receipt of the aforesaid response, the respondent wrote to the petitioner on 13 May 2024, invoking arbitration in terms of Clause 39 of the GCC. The respondent claimed a principal amount of Rs. 3,33,00,000/-, apart from interest. The notice appointed Justice Iqbal Ahmed Ansari, a former Chief Justice of the High Court of Patna as the respondent's arbitrator and called upon the petitioner to nominate its arbitrator in terms of Clause 39 of the GCC. 17. The petitioner responded on 28 June 2024, calling upon the respondent to revoke the notice of arbitration as it was defective and premature and requiring them to approach the Project Manager before invoking arbitration. 18. The respondent, thereupon, again wrote to the petitioner on 26 July 2024, informing the petitioner that, in terms of Clause 39 of the GCC, as the petitioner had failed to nominate its arbitrator, the arbitrator named by the respondent in ....
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....clause which envisages one of the parties appointing its arbitrator and writing to the other party to do likewise and, on the second party failing to do so, envisages the arbitrator appointed by the first party functioning as the sole arbitrator in the dispute. As such, she submits that, if the arbitrator appointed by the respondent is functioning as the sole arbitrator, it is not because the respondent has unilaterally exercised its right to appoint an arbitrator without the petitioner having any participatory role in such exercise. The petitioner, by failing to appoint its arbitrator, in response to the Section 21 notice issued by the respondent, itself condescended to the respondent's arbitrator functioning as the sole arbitrator. As such, she submits that the appointment of the arbitrator in such circumstances, does not violate the Perkins line of decisions. 26. Having heard learned counsel for both sides, I am of the opinion that the submission of Ms. Soni, regarding the vulnerability of Clause 39.2 of the GCC to evisceration as being violative of Perkins line of decisions merits serious consideration. 27. While I am not inclined to take a final view in that regard at th....
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....jurisdiction under Section 11(6) of the 1996 Act, the Supreme Court has now held that the Court could examine only two aspects; the first being whether there exists an arbitration agreement between the parties and the second being whether the Section 11(6) petition has been filed within three years of the Section 21 notice issued by the party. 32. The issue of whether the dispute is arbitrable, whether it is discharged by accord and satisfaction or whether the claims are barred by time, have specifically been held by the Supreme Court to be issues which have to be relegated for decision to the arbitral tribunal. Even the aspects of whether there exists an arbitration agreement between the parties, or whether the Section 11(6) petition was filed within three years of issuance of Section 21 notice, can only be examined by the Section 11 referral court prima facie. If, to arrive at a conclusion on these issues, anything more than a prima facie examination is required, even these issues have to be relegated for decision by the arbitral tribunal. 33. As such, in the scenario as it exists today, issues which can be decided by the arbitral tribunal under Section 16 of the 1996 Act h....