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Himachal Pradesh High Court · body

2017 DIGILAW 1454 (HP)

Hcl Infotech Limited v. Hpseb

2017-12-27

VIVEK SINGH THAKUR

body2017
JUDGMENT Vivek Singh Thakur, J. (Oral) - This petition has been filed under Sub-section (6) of Section 11 of the Arbitration and Conciliation Act, 1996 (for short ''Act'') for appointment of Sole Arbitrator in terms of Clause 8.2 of GCC agreement and Clause 8.2 (a) of SCC agreement. 2. In pursuance to tender floated by respondents for supply of various power related equipments under R-APDRP (Restructured-Accelerated Power Development Reform Program) in order to reduce AT&C losses, petitioner company was appointed as IT Implement Agency (ITIA) on the rates, terms and conditions mentioned in Letter of Award (LoA) dated 30.8.2010 (Annexure P-2). 3. A dispute with respect to entitlement of petitioner to avail concessional rates of tax has arisen between parties as petitioner is claiming refund of entry tax, on the basis of Clause 6 of Letter of Award dated 30.8.2010, whereas according to respondent, petitioner is not entitled for refund of entry tax in terms of award which includes liability of petitioner to pay entry tax. Both parties are relying upon terms of contract between them. 4. For resolving aforesaid dispute, petitioner company invoked the arbitration clause contained in Clause 8.2 (a) of the SCC of agreement in terms of Clause 8.2 of the GCC and issued a notice dated 28.8.2017 seeking the appointment of arbitrator by proposing the name of its nominee arbitrator, as according to agreement, the Arbitral Tribunal shall consist of three Arbitrators, out of which each party shall nominate an Arbitrator and two nominated Arbitrators shall mutually agree and nominate a third Presiding Arbitrator. The respondents had to resolve issue within 28 days from the date of notice, but on failure to act upon the notice, petitioner company has approached this Court by invoking Section 11 of Arbitration and Conciliation Act 1996 with prayer to appoint nominee Arbitrator on behalf of respondents board or in alternative to appoint a Sole Arbitrator. 5. Arbitration agreement envisages two Arbitrators, one each to be appointed by petitioner and respondent, who in turn have to nominate a third Presiding Arbitrator. 6. Section 10(1) of the Act provides that parties are free to determine the number of Arbitrators provided that such number shall not be an even number. However, Subsection 2 of this Section lays down that failing the determination referred to in Subsection (1), the Arbitral Tribunal shall consist of a sole arbitrator. 7. 6. Section 10(1) of the Act provides that parties are free to determine the number of Arbitrators provided that such number shall not be an even number. However, Subsection 2 of this Section lays down that failing the determination referred to in Subsection (1), the Arbitral Tribunal shall consist of a sole arbitrator. 7. Section 11(2) of the Act provides that subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators. Sub-section (6) of Section 11 of the Act provides that where, under an appointment procedure agreed upon by the parties, a party fails to act as required under that procedure, a party may request the Supreme Court or as the case may be, the High Court or any person or institution designated by such Court, to take necessary measure unless the agreement on the appointment procedure provides other means for securing the appointment. 8. In present case, respondents have failed to nominate Arbitrator in purusnace to notice issued by petitioner company. Petitioner company has prayed for nomination of Arbitrator on behalf of respondents and in alternative for appointment of Sole Arbitrator. 9. Learned counsel for the respondents under instructions of his client submits that in order to reduce the cost of arbitration proceedings and to save public money, respondents have agreed to the prayer of petitioner company to appoint the Sole Arbitrator. On combined reading of Sections 10 and 11 of the Act, I find that irrespective of Clause in Arbitration agreement to have three members Arbitral Tribunal, parties are free to determine number of Arbitrator(s), and to agree on procedure for appointing the Arbitrator and to appoint Sole Arbitrator with mutul consent. On this count, I also draw support from judgment of the Apex Court in case National Aluminium Co. Ltd. vs. Metalimpex Ltd. reported in (2001)6 SCC 372 . 10. In present case, learned counsel for the parties, under instructions of their respective clients, jointly submit that parties have arrived at consensus to appoint only a single member Arbitral Tribunal and to appoint Hon''ble Mr. Justice Kuldip Singh, (Retd), as Sole Arbitrator to adjudicate the respective claims of parties. 11. Being so, Hon''ble Mr. Justice Kuldip Singh (Retd) is appointed as Sole Arbitrator with consent of parties to adjudicate the matter in accordance with law and in terms of agreement by making a speaking reasoned award. Justice Kuldip Singh, (Retd), as Sole Arbitrator to adjudicate the respective claims of parties. 11. Being so, Hon''ble Mr. Justice Kuldip Singh (Retd) is appointed as Sole Arbitrator with consent of parties to adjudicate the matter in accordance with law and in terms of agreement by making a speaking reasoned award. He shall be entitled for fee as per Schedule. Registry is directed to transmit necessary communication in this regard to the Sole Arbitrator immediately. 12. Petition stands disposed of on above terms.