Sanjul Aggarwal Vs Executive Engineer — Arbitration | Himachal Pradesh HC (2024)

Sanjul Aggarwal Vs Executive Engineer — Arbitration | Himachal Pradesh HC (2024)

What the court decided

AI extract

Outcome

Substitution of the Arbitrator: Mr. M.D. Sharma, District & Sessions Judge (Retd.), appointed as Arbitrator in place of the Superintending Engineer, Arbitration Circle, HP PWD, Solan, with effect only upon receipt of his written disclosure in terms of Section 11(8) of the Arbitration and Conciliation Act, 1996; on consent he shall enter into reference and pass an award in accordance with law; entitled to fee as per the 4th Schedule to the Act; pending applications, if any, disposed of accordingly.

Issue for consideration

Whether the Arbitrator appointed by the respondent, being an employee of the respondent-Department, should be substituted under Sections 14 and 15 of the Arbitration and Conciliation Act, 1996. +1 more

Court's answer

The application under Sections 14 and 15 is allowed and Mr. M.D. Sharma, District & Sessions Judge (Retd.), is appointed as Arbitrator to resolve the dispute between the parties; his appointment comes into force only after receipt of his written disclosure in terms of Section 11(8) of the Act.

Ratio / Principle

Any consent of the parties to the appointment of the arbitrator cannot operate as an estoppel against the statutory disqualification under Section 12(5) read with the Fifth Schedule of the Arbitration and Conciliation Act, 1996.

Key takeaways

Upon giving consent to arbitrate, the newly appointed Arbitrator (Shri M.D. Sharma, District & Sessions Judge (Retd.)) shall enter into reference and pass an award in accordance with law.ratio¶11

Detailed headnote1 paragraphs

Arbitration and Conciliation Act, 1996 – Sections 14 & 15 – substitution of arbitrator – Arbitrator appointed by respondent (Superintending Engineer, Arbitration Circle, HP PWD, Solan, an employee of the respondent-Department) allegedly did not conduct hearing or complete arbitration proceedings, and stands disqualified under Section 12(5) read with the Fifth Schedule – consent of parties to his appointment cannot operate as an estoppel against statute – Mr. M.D. Sharma, District & Sessions Judge (Retd.), appointed Arbitrator; appointment effective only after his written disclosure in terms of Section 11(8); fee per Fourth Schedule.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Arb. Case No. 620 of 2023 _Date of decision: 10.04.2024 _____________________________________________________ Sanjul Aggarwal …Petitioner Versus Executive Engineer …Respondent ____________________________________________________ Coram: The Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice Whether approved for reporting?¹ _______________________________________________ For the petitioner : Mr. Sumeet Raj Sharma, Advocate. For the respondent: Mr. Arsh Rattan, Deputy Advocate General

M.S. Ramachandra Rao, Chief Justice (Oral)

This Application is filed under Sections 14 & 15 of the Arbitration and Conciliation Act, 1996 to substitute the Arbitrator appointed by the respondent, who is an employee of the respondent-Department.

It is alleged that the Arbitrator appointed i.e. the Superintending Engineer, Arbitration Circle, HP PWD, Solan, on 29.09.2016, did not conduct hearing and complete the arbitration proceedings; and he is also disqualified to be the Arbitrator in view

1 Whether the reporters of Local Papers may be allowed to see the judgment?

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of Section 12(5) of the Arbitration and Conciliation Act, 1996, read with the 5^th Schedule to the Act since he is an employee of the respondent-Department.

Though reply is filed by the respondent opposing the Application contending that the said Arbitrator has been appointed with the consent of the parties, any such consent cannot operate as an estoppel against statute, referred to above.

Therefore, this application is allowed and Mr. M.D. Sharma, District & Sessions Judge (Retd.), is appointed as an Arbitrator to resolve the dispute between the parties, after his disclosure in writing is obtained in terms of Section 11(8) of the Act, and only after receipt thereof, shall his appointment, as an Arbitrator, come into force.

On his giving consent to arbitrate the dispute between the parties as an Arbitrator, Shri M.D. Sharma, District & Sessions Judge (Retd.) , R.o Gulab Kunj, Lower Kaithu, Annadale, Shimla3, shall enter into reference, and shall pass an award in accordance with law.

Copy of this order be forwarded to the learned Counsel for the parties as also to the learned Arbitrator. The

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learned Arbitrator so appointed shall be entitled to fee as per stipulation contained in 4^th Schedule appended to the Arbitration and Conciliation Act, 1996.

The Application is disposed of accordingly alongwith

pending application(s), if any.

(M.S. Ramachandra Rao) Chief Justice

April 10, 2024

(hemlata)