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Himachal Pradesh High Court · body

2019 DIGILAW 1324 (HP)

Jaiprakash Power Ventures Ltd. v. State Of H. P.

2019-09-06

V.RAMASUBRAMANIAN

body2019
JUDGMENT : V. Ramasubramanian, J. These applications are filed respectively under Sections 11(6) and 9 of the Arbitration and Conciliation Act, 1996 seeking the appointment of an Arbitral Tribunal and the grant of interim measures. 2. Heard Mr.R.L. Sood, learned Senior Counsel appearing for the petitioners, Mr.Adarsh K. Sharma, learned Additional Advocate General, for the respondent-State and Mr.J.S. Bhogal, learned Senior Counsel appearing for the State Electricity Board. 3. The State of Himachal Pradesh invited proposals from the private sector for the establishment of a Hydro Power Electric Project. The first petitioner submitted a proposal and it was accepted and the memorandum of understanding dated 23.11.1991 was entered into between the first petitioner and the State. It was followed by an implementation agreement dated 01.10.1992. 4. Clause 38 of the implementation agreement dated 01.10.1992 provided for the resolution of disputes by arbitration, in accordance with the provisions of the Arbitration Act, 1940. 5. It appears that pursuant to the implementation agreement, the work of construction of the project was started by the petitioners and a power purchase agreement was entered into on 04.06.1997. A supplementary agreement was also entered into on 28.02.2003. 6. In the year 2005, a demand for payment of money was raised by the Electricity Board, purportedly for reimbursement of certain expenditure on account of survey and investigation. The demand was opposed by the petitioners. Therefore, the Electricity Board started carrying out recoveries from the amounts payable to the petitioners. 7. As against the recovery, the petitioners filed an application under Section 9 of the Act. In the said application, certain interim orders were passed by a learned Judge. Challenging the orders of the learned Judge an arbitration appeal was filed. However, the Division Bench directed the main application under Section 9 to be disposed of. 8. In the meantime, the first petitioner issued a notice dated 12.05.2015 invoking the Arbitration Clause and appointing Hon'ble Mr.Justice V.K. Gupta (retired) as its nominated Arbitrator. The respondents opposed the same. Therefore, the petitioners have come up with the Arbitration Case No.98 of 2015 under Section 11(6) of the Act. 9. This application under Section 11(6) directed to be tagged along with the petition under Section 9 in Arbitration Case No.3 of 2015. Today nothing survives in the application under Section 9, in view of certain interim orders passed. Therefore, it is ordered to be closed. 10. 9. This application under Section 11(6) directed to be tagged along with the petition under Section 9 in Arbitration Case No.3 of 2015. Today nothing survives in the application under Section 9, in view of certain interim orders passed. Therefore, it is ordered to be closed. 10. Coming to the application under Section 11(6) of the Act, the prayer of the petitioners is to appoint a second Arbitrator, in addition to Hon'ble Mr.Justice V.K. Gupta (retired) nominated by the petitioners. A further direction is sought for the Arbitrators appointed on both sides, to choose an umpire. 11. The second respondent has opposed the appointment of Hon'ble Mr.Justice V.K.Gupta. Though the second respondent has also opposed the appointment of any Arbitrator on the ground that the claim made by the petitioners is hopelessly barred by limitation and also without substance, I do not think that this Court can go into the merits of the claim of the petitioners, in an application under Section 11(6) of the Act. Therefore, the objection with regard to the prayer for appointment of an Arbitral Tribunal has to be rejected. 12. In view of the above, Hon'ble Mr. Justice C.K.Mahajan, (Retd), High court of Delhi, is appointed as sole Arbitrator to adjudicate upon the disputes between the parties. The Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open to the learned Arbitrator to fix his fees and determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act. 13. Needless to say, the award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. 14. In view of the interim orders already passed, no further orders are necessary in the application under Section 9 of the Act. Hence, it is closed. 15. The applications stand disposed of, as indicated hereinabove along with pending applications, if any. 14. In view of the interim orders already passed, no further orders are necessary in the application under Section 9 of the Act. Hence, it is closed. 15. The applications stand disposed of, as indicated hereinabove along with pending applications, if any. JUDGMENT : V. Ramasubramanian, J. These applications are filed respectively under Sections 11(6) and 9 of the Arbitration and Conciliation Act, 1996 seeking the appointment of an Arbitral Tribunal and the grant of interim measures. 2. Heard Mr.R.L. Sood, learned Senior Counsel appearing for the petitioners, Mr.Adarsh K. Sharma, learned Additional Advocate General, for the respondent-State and Mr.J.S. Bhogal, learned Senior Counsel appearing for the State Electricity Board. 3. The State of Himachal Pradesh invited proposals from the private sector for the establishment of a Hydro Power Electric Project. The first petitioner submitted a proposal and it was accepted and the memorandum of understanding dated 23.11.1991 was entered into between the first petitioner and the State. It was followed by an implementation agreement dated 01.10.1992. 4. Clause 38 of the implementation agreement dated 01.10.1992 provided for the resolution of disputes by arbitration, in accordance with the provisions of the Arbitration Act, 1940. 5. It appears that pursuant to the implementation agreement, the work of construction of the project was started by the petitioners and a power purchase agreement was entered into on 04.06.1997. A supplementary agreement was also entered into on 28.02.2003. 6. In the year 2005, a demand for payment of money was raised by the Electricity Board, purportedly for reimbursement of certain expenditure on account of survey and investigation. The demand was opposed by the petitioners. Therefore, the Electricity Board started carrying out recoveries from the amounts payable to the petitioners. 7. As against the recovery, the petitioners filed an application under Section 9 of the Act. In the said application, certain interim orders were passed by a learned Judge. Challenging the orders of the learned Judge an arbitration appeal was filed. However, the Division Bench directed the main application under Section 9 to be disposed of. 8. In the meantime, the first petitioner issued a notice dated 12.05.2015 invoking the Arbitration Clause and appointing Hon'ble Mr.Justice V.K. Gupta (retired) as its nominated Arbitrator. The respondents opposed the same. Therefore, the petitioners have come up with the Arbitration Case No.98 of 2015 under Section 11(6) of the Act. 9. 8. In the meantime, the first petitioner issued a notice dated 12.05.2015 invoking the Arbitration Clause and appointing Hon'ble Mr.Justice V.K. Gupta (retired) as its nominated Arbitrator. The respondents opposed the same. Therefore, the petitioners have come up with the Arbitration Case No.98 of 2015 under Section 11(6) of the Act. 9. This application under Section 11(6) directed to be tagged along with the petition under Section 9 in Arbitration Case No.3 of 2015. Today nothing survives in the application under Section 9, in view of certain interim orders passed. Therefore, it is ordered to be closed. 10. Coming to the application under Section 11(6) of the Act, the prayer of the petitioners is to appoint a second Arbitrator, in addition to Hon'ble Mr.Justice V.K. Gupta (retired) nominated by the petitioners. A further direction is sought for the Arbitrators appointed on both sides, to choose an umpire. 11. The second respondent has opposed the appointment of Hon'ble Mr.Justice V.K.Gupta. Though the second respondent has also opposed the appointment of any Arbitrator on the ground that the claim made by the petitioners is hopelessly barred by limitation and also without substance, I do not think that this Court can go into the merits of the claim of the petitioners, in an application under Section 11(6) of the Act. Therefore, the objection with regard to the prayer for appointment of an Arbitral Tribunal has to be rejected. 12. In view of the above, Hon'ble Mr. Justice C.K.Mahajan, (Retd), High court of Delhi, is appointed as sole Arbitrator to adjudicate upon the disputes between the parties. The Arbitrator is requested to enter into reference within a period of two weeks from the date of receipt of a copy of this order. It shall be open to the learned Arbitrator to fix his fees and determine his own procedure with the consent of the parties. Otherwise also, entire procedure with regard to fixing of time limit for filing pleadings or passing of Award stands prescribed under Sections 23 and 29A of the Act. 13. Needless to say, the award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. 14. 13. Needless to say, the award shall be made strictly as per provisions contained in Arbitration and Conciliation Act. A copy of this order shall be made available to the learned Arbitrator named above, by the Registry of this court within one week enabling him to take steps for commencement of the arbitration proceedings within stipulated period. 14. In view of the interim orders already passed, no further orders are necessary in the application under Section 9 of the Act. Hence, it is closed. 15. The applications stand disposed of, as indicated hereinabove along with pending applications, if any.