TMI Blog2011 (11) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the MCD that the present petition had been rendered infructuous. 2. Mr. Sudeep Kumar Shrotriya, learned counsel for the Petitioner, on the other hand, pointed out that the MCD had appointed its Arbitrator only after the present petition was filed by the Petitioner and notice was issued thereon by this Court. Relying on the decisions in Datar Switchgears v. Tata Finance Ltd. (2000) 8 SCC 151, Punj Lloyd v. Petronet MHB Ltd. (2006) 2 SCC 638 and Union of India v. Bharat Battery Manufacturing Co. (P) Ltd. (2007) 7 SCC 684, he submitted that the MCD had forfeited its right to appoint an Arbitrator and, therefore, it is for this Court to appoint an Arbitrator. 3. Opposing the above submissions, Ms. Pushkarna, learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2011 it informed the Petitioner that it was appointing Engineer Member of the DDA (Retired) as a Sole Arbitrator. Clearly, therefore, the MCD did not appoint the Arbitrator in terms of the arbitration clause prior to the Petitioner approaching this Court with the present petition. 6. In Datar Switchgears v. Tata Finance Ltd. (supra), the Supreme Court explained as under: 19. So far as cases falling Under Section 11(6) are concerned, such as the one before us, no time limit has been prescribed under the Act, whereas a period of 30 days has been prescribed Under Section 11(4) and Section11(5) of the Act. In our view, therefore, so far as Section 11(6) is concerned, if one party demands the opposite party to appoint an arbitrator and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny time limit as such. The time limit of 30 days is envisaged under Section 11(4)(a) of the Act. Consequently, it wass observed in Datar Switchgears that if the opposite party makes an appointment even after 30 days of the demand, but before the first party has moved the Court under Section 11, that would be sufficient. 8. The decision in Datar Switchgears was further affirmed in Punj Lloyd v. Petronet MHB Ltd. In the latter case, even till the date of moving of the application under Section 11(6) of the Act the Respondent had not made appointment consistently with the arbitration clause. 9. In Union of India v. Bharat Battery Manufacturing Co. (P) Ltd. the dictum of Datar Switchgears and Punj Lloyd v. Petronet MHB Ltd. was further a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It would appear, therefore, that the only point which was considered by the Supreme Court was whether by not making an appointment within thirty days of the demand the Respondent had forfeited the right to appoint an Arbitrator. Relying on the above noted observations of the Supreme Court in Datar Switchgears in which it was held that even if the appointment is made after thirty days such right would not be forfeited, the Supreme Court in ACE Pipeline Contracts (P) Ltd. v. Bharat Petroleum Corporation Ltd. negatived the plea of the claimant and upheld the appointment made by the Respondent of an Arbitrator in terms of the clause. The facts of ACE Pipeline Contracts (P) Ltd. v. Bharat Petroleum Corporation Ltd. indicates that the appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
