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2019 (11) TMI 1154 - SC - Indian LawsAppointment of arbitrators - appointment of Design Consultants for the “comprehensive planning and designing, including preparation and development of concepts, master plan for the campus, preparation of all preliminary and working drawings for various buildings/structures, including preparation of specifications and schedule of quantities’ for the proposed All India Institute of Medical Sciences at Guntur, Andhra Pradesh - whether the arbitration in the present case would be an International Commercial Arbitration or not? - Section 11(6) read with Section 11(12)(a) of the Act - whether a case is made out for exercise of power by the Court to make an appointment of an arbitrator? HELD THAT:- It is not disputed by the respondent that it was a requisite condition to declare a lead member of the Consortium and that by aforesaid declaration the applicant No.1 was shown to be the lead member of the Consortium - It is clear that the declaration shows that the Applicant No.1 was accepted to be the lead member of the Consortium. Even if the liability of both the Applicants was stated in Clause 9 to be joint and several, that by itself would not change the status of the Applicant No.1 to be the lead member. We shall, therefore, proceed on the premise that Applicant No.1 is the lead member of the Consortium. In M/S LARSEN AND TOUBRO LIMITED, SCOMI ENGINEERING BHD VERSUS MUMBAI METROPOLITIAN REGION DEVELOPMENT AUTHORITY [2018 (12) TMI 178 - SUPREME COURT] more or less similar fact situation came up for consideration and it was held that “Association” and “Body of individuals” referred to in Section 2(1)(f) of the Act would be separate categories. However, the lead member of the Association in that case being an Indian entity, the “Central Management and Control” of the Association was held to be in a country other than India. Relying on said decision we conclude that the lead member of the Consortium company i.e. Applicant No.1 being an Architectural Firm having its registered office in New York, requirements of Section 2(1)(f) of the Act are satisfied and the arbitration in the present case would be an “International Commercial Arbitration”. Whether the power can be exercised by this Court under Section 11 of the Act when the appointment of an arbitrator has already been made by the respondent and whether the appellant should be left to raise challenge at an appropriate stage in terms of remedies available in law? - HELD THAT:- In TRF LTD. VERSUS ENERGO ENGINEERING PROJECTS LTD. [2017 (7) TMI 1288 - SUPREME COURT], the Managing Director of the respondent had nominated a former Judge of this Court as sole arbitrator in terms of aforesaid Clause 33(d), after which the appellant had preferred an application under Section 11(5) read with Section 11(6) of the Act. The plea was rejected by the High Court and the appeal therefrom on the issue whether the Managing Director could nominate an arbitrator was decided in favour of the appellant as stated hereinabove. As regards the issue about fresh appointment, this Court remanded the matter to the High Court for fresh consideration - In the light of these authorities there is no hindrance in entertaining the instant application preferred by the Applicants. Application allowed.
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