AKSHAYA JAIN Vs. AIRPORT AUTHORITY OF INDIA

JUDGEMENT

(1.) This is an arbitration petition, on behalf of the petitioner, under Section 11(6) of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as the 'Act') seeking the appointment of an arbitrator.

(2.) The petitioner's case is as follows:- (a) The petitioner is a firm of Architects & Interior Design Consultants. The respondent is the Airports Authority of India. A design competition was held for the work of construction of a Civil Aviation Training Centre at Bamrauli, Allahabad. After being successful in the design competition, the petitioner entered into an Agreement on 20th November, 1989 with the respondent (which was formerly known as National Airports Authority of India and is now known as Airports Authority of India) for the construction of a Civil Aviation Centre at Bamrauli. The petitioner was to provide architectural and engineering services as per the said Agreement. The petitioner was able to complete the work with due diligence on 30th April, 1997 and the said project was awarded JITA Award-1999 for "Excellence in Architecture" by the Indian Institute of Architects. Despite the aforesaid award and completion of work the respondent failed to release the dues to the petitioner and wrongly withheld the amounts due to the petitioner. It is . the case of the petitioner that even though the bills of the petitioner were to be settled within six months from the completion, the bills were not so settled. The petitioner addressed several letters to the respondent for payment of its dues and settlement of its pending bills but there was no response from the respondent though verbal assurance were given to the petitioner. Finally the petitioner issued a letter dated 26.5.1999 calling upon the respondent to clear the dues of the petitioner within one month failing which the petitioner stated that it would invoke the arbitration clause. There was no response to the said letter dated 26.5.1999 and petitioner sent another letter dated 5th July, 1999 calling upon the respondent to appoint within 30 days the Sole Arbitrator in terms of the Agreement between the parties. The arbitration clause in the agreement between the parties reads as follows:-

(3.) By its letter dated 28th July, 1999, the respondent did not release any payment to the petitioner demanded in the letter dated 26th May, 1999 and failed to appoint the Arbitrator. Significantly the letter of the respondent dated 28.7.1999 did not even refer to the petitioner's letter dated 5.7.99 relating to the demand for appointment of an arbitrator within 30 days. Thereafter several reminders were given to the respondent to appoint the arbitrator but no action was taken by the respondent to do so. Following the letter of the respondent dated 28th July, 1999, the petitioner sent a reply on 28th September, 1999 replying to the averments of the respondent in the said letter dated 28th July, l999 reiterating the delay in processing & clearing their bills. On l2th October, 1999 the petitioner sent another letter to the respondent reiterating the quest lor appointment a Sole Arbitrator within 30 days which request was first made on 5th July, 1999. There was no response to the said letter. Another reminder was sent on 26.11.1999 again reiterating the demand for an appointment of an Arbitrator within thirty days made on 5th July, 1999 and no reply was received even to the said letter. Thereafter having waited for a period of about 5 months, the present petition was Filed. By this said petition appointment of an independent arbitrator preferably a retired Judge of this Court was sought as the respondent failed to appoint an arbitrator in spite of repeated demands. This petition came up for hearing on 1st May, 2000 and notice .was issued on the said date. The order-of this Court issuing Notice also stated that if the notice is served within a week, the reply to the petition was to be filed within four weeks from the date of receipt of notice and notice was made returnable on 17th July, 2000. On 17th July, 2000 the counsel for the respondent appeared in this Court and slated that the respondent after the issue and service of notice by this Court, had appointed one Mr. M.P. Patkar of Bombay as arbitrator. The Court was also informed by the petitioner that the Council of Architecture which is a statutory body under the Architects Act, 1972 was involved in selecting the best design in the competition lor the project of Civil Aviation Training Centre. For this purpose, the petitioner had relied upon Clause 2.1 of the Document for. Limited Architectural Competition for the Civil Aviation Training Centre issued by the respondent involved in the present ease. The said jury panel incorporates the President of the Council of Architecture of India as a Member. As per clause 3.3 even the fees payable to, and conditions of appointment of the architect selected by the Jury was to be fixed by the promoters in consultation with the Jury and was to be comparable to the scales of fees recommended by the Council of Architecture. The learned counsel for the petitioner has also relied on Explanatory Notes in respect of limited architectural competition conducted by the respondent for the present project and the answer given by the respondent in response to a query was that the fees payable to the selected Architect would be accordance with the recommendations of the Council of Architecture. The above clauses emanate from the documents of the respondents which were handed over in court by the learned counsel for the petitioner and taken on record and there is no dispute that these are the documents of the respondent.