National Highways Authority Of India vs M/S. Progressive Construction Ltd

Indu Malhotra, J

Leave granted.

The present Appeal arises out of the Judgment passed under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the Single Judge vide

Order dated 10.04.2019 has substantially set aside the Award dated 27.04.2016 passed by a threeÂmember tribunal. It has been observed that the

arbitral tribunal has drawn incorrect inferences from the documents on record, and has not considered vital and relevant evidence in reaching its

conclusions. On this basis, a substantial number of claims and counter claims were rejected, granting liberty to the parties to reÂagitate their claims,

and counter claim (a) afresh in accordance with law.

Aggrieved by the judgment of the Single Judge, cross appeals were filed by both parties under Section 37 before the Division Bench. The Division

Bench vide the impugned interim Order dated 04.12.2019 directed that the Appeals be confined to the findings with respect to claim nos. 1(i) and (ii);

and counter claim (a).

The AppellantÂ​NHAI filed the present Appeal to challenge the interim Order dated 04.12.2019.

During the pendency of the present Appeal, the parties agreed to a fresh adjudication of all the claims and counter claims made by the parties before a

Sole Arbitrator to be appointed by this Court.

We direct that the arbitral proceedings be conducted afresh by the Indian Council of Arbitration, Federation House, Tansen Marg, New DelhiÂ​110001

in accordance with its Rules. The Indian Council of Arbitration will have the entire record of the arbitral proceedings collected from the previous

arbitral tribunal.

Accordingly, with the consent of the Counsel for the parties, we appoint Justice G. S. Singhvi, former Judge of this Court, as the Sole Arbitrator, who

will adjudicate all the claims and counter claims afresh. If the Sole Arbitrator requires the assistance of qualified Engineer/s or Expert/s, he may

appoint such person/s under Section 26 of the Arbitration and Conciliation Act, 1996. The Ld. Arbitrator is free to fix his fees after consultation with

the parties, which will be borne equally by them.

The appointment of the Sole Arbitrator is subject to the declarations made under Section 12 of the Arbitration and Conciliation Act, 1996 (as

amended) with respect to the independence and impartiality of the arbitrator, and the ability to devote sufficient time to complete the proceedings

within the statutory period of 12 months under Section 29A of the Act. Parties are directed to approach the Indian Council of Arbitration within a

period of 2 weeks to fix the date of the arbitral proceedings.

A copy of the Appeal paperÂ​book be provided by the Registry to the Indian Council of Arbitration, to enable it to proceed with the matter.

In view of the aforesaid directions, the Order dated 04.12.2019 passed by the Delhi High Court in FAO(OS)(Comm) 353/2019 is set aside. The

Appeals filed by both parties under Section 37 of the Arbitration Act being FAO (OS) (Comm) 353 and 182 of 2019 pending before the Delhi High

Court have accordingly become infructuous.

The present Appeal is allowed in the aforesaid terms. Pending applications, if any, stand disposed of.