Hindustan Construction Co. Ltd vs General Manager, East Coast Railway And Another

Dr. S. Muralidhar, CJ

The present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('Act') seeks the appointment of an Arbitrator to adjudicate the disputes between the Petitioner and the Opposite Parties arising out of the agreement dated 28th February, 2018 for the work "Br. No.303 and Training work for water flow."

Mr. S.S. Kashyap, learned Central Government Counsel appearing for the Opposite Party (Railways) raises an objection that since the Petitioner went before the District Judge, Visakhapatnam with an application under Section 9 of the Arbitration and Conciliation Act ('the Act'), the Petitioner in terms of Section 42 of the Act cannot seek the relief under Section 11(6) of the Act by filing the present petition but has to approach the concerned Court.

On the other hand, learned counsel for the Petitioner refers to Clause 64 (1)(iii)(d) of the General Conditions of Contract - 2014 as modified, which applies to the contract in question which specifies the place of arbitration to be "within the geographical limits of the division of Railway" where the cause of action arose or the Headquarters of the concerned Railway or any other place with the written consent of both the parties. He points out that the person authorized to appoint an Arbitrator was the General Manager, East Coast Railway (ECR), who is at Bhubaneswar and therefore, the petition was filed in this Court.

Be that as it may, since the ECR, in principle, is not opposed to the appointment of an Arbitrator, there is little purpose served in relegating the Petitioner to the appropriate High Court as that will only delay the adjudication of the disputes.

In that view of the matter, the Court appoints Mr. S.P. Mishra, Senior Advocate of this Court as the sole Arbitrator to adjudicate the disputes between the parties. The arbitration shall take place under the aegis of the High Court of Orissa Arbitration Centre.

The ARBP is disposed of accordingly.

A copy of this order be communicated to the learned Arbitrator and the Co-ordinator of the Arbitration Centre forthwith.

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