The Court appointed Justice P.R. Gokulakrishnan as the presiding arbitrator to constitute the arbitral tribunal in a dispute between two private companies under an arbitration agreement.
Appointment of Mr. Justice P.R. Gokulakrishnan as the Presiding Arbitrator to constitute the Arbitral Tribunal.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED.19.03.2018
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
O.P. No.63 of 2018
Karismaa Foundations Private Limited,
Represented by Its Managing Director
Mr.Rakesh P.Sheth,
No.340, I South Main Road,
Kapaleeswarar Nagar,
Neelankarai,
Chennai – 600 115 .. Petitioner
-vs-
S & P Foundation Limited,
TPL House, 2 nd Floor,
No.3, Cenotaph Road,
Teynampet,
Chennai – 600 018 ..Respon-
dent
Prayer: Petition filed under Section 11 (6) of the Arbitration and conciliation Act, 1996, to appoint an presiding arbitrator to resolve the disputes arising out Turnkey Agreement dated 05.10.2012 between the petitioner and respondent.
For Petitioner : Mr.Nithyaesh Nataraj
For Respondent : Mr.W.M.Abdul Majeed
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O R D E R
This petition is filed seeking the appointment of a Presiding Arbitrator in terms of Section 11 (6) of the Arbitration and Conciliation Act, 1996 (in short 'Act'). The Dispute Resolution Agreement is clause 9 of Turnkey Agreement dated 05.10.2012, which provides for reference of matter to Arbitration in terms of Clause 2.35 of the Conditions of Contract (in short ‘CC’).
2.Clause 2.35.3 of the CC provides for the appointment of a
sole Arbitrator, if mutually agreeable to both parties. In case the parties are unable to arrive at a mutual agreement, both parties, the petitioner, the contractor in the Agreement and the respon-
dent, the developer, shall appoint an Arbitrator of their choice and the two appointed Arbitrators shall appoint a third Arbitrator who shall act as Presiding Arbitrator.
and Mr. W.M.Abdul Majeed, learned counsel for the respondent
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concur on the position that the Arbitral Tribunal was originally constituted with Mr.Justice.N.V.Balasubramanian and Mr.Justice.Valli-
nayagam as members nominated by both parties. Initially Mr.Justice. K.Sampath had been appointed as the Presiding Arbitrator.
Upon his unfortunate demise, Mr.Justice.K.M.Natarajan appears to
have been nominated.
that I refrain from adverting to in detail since it is not relevant for the consideration of the prayer before me. Suffice it to say that Mr. Justice K.M. Natarajan thought it fit to recuse himself from the proceedings as did Justice E.Padmanabhan who was thereafter nominated by the two learned Arbitrators.
appointment of the Presiding Arbitrator by the two arbitrators nominated by the parties, they have, on account of the events happening in the interim after the demise of the Presiding Arbitra-
tor originally appointed, directed the parties to approach the High Court for appointment of Presiding Arbitrator as per email
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dated 27.08.2017 from Mr.Justice.T.N.Vallinayagam to Mr.Jus-
tice.N.V.Balasubramaniam.
6.Both learned counsel concur on the position that it is for
this Court to appoint the Presiding Arbitrator as per the request of the two learned Arbitrators.
21.......
.......
(vi) The Chief Justice or his designate while exercising power under Sub-section (6) of Section 11 shall endeavour to give effect to the appointment procedure prescribed in the arbitration clause.
(vii) If circumstances exist, giving rise to justifiable doubts as to the independence and impartiality of the person nominated, or if other circumstances warrant appointment of an independent arbitrator by ignoring the procedure prescribed, the Chief Justice or his designate may, for reasons to be recorded, ignore the designated arbitrator and appoint someone else.'
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Gokulakrishnan, Former Chief Justice, as the Presiding Arbitrator
to constitute the Arbitral Tribunal along with Mr.Justice.N.V.Balasubramaniam and Mr.Justice.T.N.Vallinayagam.
8.The Arbitral Tribunal as constituted, is requested to adjudicate upon the disputes inter se the parties from the stage at which the Tribunal finds it expedient to continue the proceedings. The Tribunal is requested to conclude the proceedings as expeditiously as possible and is at liberty to fix its schedule of fees and expenses
that both parties will bear equally.
19.03.2018
rkp/msr
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Dr.ANITA SUMANTH,J.
rkp/msr
O.P. No.63 of 2018
19.03.2018
3 issues framed by the court
Whether the petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of a presiding arbitrator is maintainable given the parties' inability to appoint one.
Which individual should be appointed as the presiding arbitrator to constitute the arbitral tribunal.
Whether the Chief Justice or his designate can appoint an independent arbitrator ignoring the designated procedure when justifiable doubts or other circumstances exist.
Colour shows how this judgement treated each authority
In Indian Oil Corporation Ltd. vs. Raja Transport (P) Limited ((2009) 8 SCC 520)Explained¶35
1 provisions across 1 enactments
Karismaa Foundations Private Limited
S & P Foundation Limited
Anita Sumanth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
