Yogesh Sharma vs State Of Uttarakhand & Others

Vipin Sanghi, CJ

1) The applicant has preferred the present application under Section 11(6) of the Arbitration and Conciliation Act, to seek appointment of a sole Arbitrator to adjudicate the disputes, which have arisen between the parties under their agreement dated 05.11.2020.

2) Under the said agreement, the applicant was appointed as a contractor for executing desilting and timely Ganga river diversion work in Ganga canal escape channel for water supplying in existing ghats in Har-Ki-Pauri and other Kumbh area. The bid of the applicant for Rs.223.09 lakhs was accepted by the respondents.

3) The agreement entered into between the parties contains a dispute resolution clause, in clauses 24 and 25, which reads as under :

“24. Dispute Redressal

24.1 In case of any dispute, the Employer shall appoint adjudicator on the request of the contractor within 15 days of receipt of request. Payment made to the adjudicator shall be borne equally by both the parties.

Procedure for Disputes

25.1 If any of the party does not agree with the decision of the adjudicator, the dispute may be referred to arbitrator as per Arbitration and Conciliation Act, 2015 or any modification thereof.”

4) The case of the applicant is that disputes arose between the parties and, consequently, the applicant sent a notice on 04.01.2023, seeking appointment of a sole Arbitrator, due to non-resolution of dispute by the respondents.

5) The respondents did not respond to the said notice at all and, consequently, this application has been preferred. Upon issuance of notice, the respondent has filed its counter-affidavit. The only defence taken by the respondent to this application is that the applicant did not invoke clause 24.1, which required him to seek appointment of an adjudicator. Only if the decision of the adjudicator was not agreeable to either of the parties, could arbitration have been invoked.

6) Pertinently, when the applicant invoked the arbitration agreement, vide notice dated 04.01.2023, the respondents did not respond by stating that instead of appointing an arbitrator, an adjudicator would first be appointed under clause 24.1 aforesaid. It was open to the respondent to proceed to appoint the adjudicator under clause 24.1. However, that was not done. Therefore, in my view, the aforesaid defence taken by the respondent is, nether here, nor there. Admittedly, there is an arbitration agreement between the parties which has been invoked by the applicant. Despite its invocation, the Arbitral Tribunal has not been constituted.

7) Accordingly, I allow this arbitration application, and appoint Mr. Justice S.K. Mittal, Retd. Chief Justice, Rajasthan High Court, Mobile No. 9780008107, to act as a sole Arbitrator to adjudicate the disputes between the parties. The learned Arbitrator may hold the proceedings virtually.