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2018 (12) TMI 1929 - SC - Indian LawsAppointment of independent arbitrator - declination to appoint holding that as per the terms of the agreement, arbitrator had already been appointed - in the light of the agreement between the parties in Clause (65) of the general conditions of contract whether the Appellant/contractor can challenge the appointment of the Superintendent Engineer, Arbitration Circle as Arbitrator to resolve the dispute between the parties? - HELD THAT:- The High Court placed reliance upon the judgment in ANTRIX CORP. LTD. VERSUS DEVAS MULTIMEDIA P. LTD. [2013 (5) TMI 402 - SUPREME COURT]and held that when the Superintendent Engineer, Arbitration Circle was appointed as the Arbitrator in terms of the agreement (or arbitration clause), the provisions of Sub-section (6) of Section 11 cannot be invoked again. The High Court further observed that in case, the other party is dissatisfied or aggrieved by the appointment of an arbitrator in terms of the agreement, his remedy would be by way of petition Under Section 13 and thereafter while challenging the award Under 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. When the parties have specifically agreed for appointment of sole Arbitrator of the person appointed by the Engineer-in-Chief/Chief Engineer, HPPWD, the Appellant was not right in approaching the High Court seeking appointment of an independent Arbitrator - Inspite of extension of time, since the Appellant-contractor had not filed statement of claim, the arbitrator terminated the proceedings Under Section 25(a) of the 1996 Act by proceedings dated 06.08.2014. The Appellant-contractor did not file his statement of claim before the arbitrator since the Appellant had approached the High Court by filing petition Under Section 11(6) of the 1996 Act, probably under the advice that the Appellant can get an independent arbitrator appointed. The Appellant had been writing letters to the arbitrator before the hearing seeking adjournment. An opportunity is to be afforded to the Appellant to go before the departmental arbitrator (as agreed by the parties in Clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. After the Amendment Act, 2015, there cannot be a departmental arbitrator - in this case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked. The proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of Clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of Clause (65) of the agreement - the Appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law. Appeal disposed off.
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