PRASAR BHARATI Vs. STRACON INDIA LIMITED

JUDGEMENT

(1.) Allowed subject to all just exceptions. Delay in re-filing the petition stands condoned. Arb.P.No.28/04 This is a petition under Section 11(6)(c) of the Arbitration and Conciliation Act, 1996(hereinafter referred to as the `Act') filed by Prasar Bharati for appointment of an independent arbitrator.

(2.) This petition again raises the questions which repeatedly arise during proceedings for the appointment of an independent arbitrator under Section 11(6)(c) of the Act. The petitioner had entered into an Accreditation Agreement dated 5th June, 1997 with the respondent by which the respondent was required to book advertisements for the programmes telecast by the petitioner and the respondent was allowed a commission @ 15% of the advertisement revenue collected by it and rest of the revenue was to be remitted back to the petitioner. Clause 5 of the agreement between the parties providing for settlement of disputes by way of arbitration reads as follows:-

(3.) That admittedly upon disputes arising between the parties and in accordance with the above clause, the petitioner had called upon the Director General, Doordarshan and the respondent to appoint an arbitrator by addressing a communication to the Director General as provided in the aforesaid Clause 5 on 8th February, 2003 by a letter admittedly received by the Office of the D.G., Doordarshan as well as the respondent. In reply, the petitioner had been informed by the Directorate General, Doordarshan that the post of the Director General, Doordarshan was lying vacant and its request for appointment of an arbitrator can only be acted upon by the Director General as and when he is appointed and as such no action has been taken on the petitioner's request for appointment of an arbitrator. On 23th January, 2004 the petitioner approached this Court under sub-section (6) of Section 11 of the Act. On 28th January, 2004 notice was issued to the respondents. In reply to the arbitration petition, Mr. Arvind K. Nigam along with Mr. Anish Dayal appears on behalf of the respondents and has raised the following pleas in opposition to the prayer made in the petition for appointment of an arbitrator:- (i) that there is no arbitration agreement between the parties to appoint an arbitrator as no arbitration clause is contained in the agreement between the parties. (ii) The dispute is stale one and is barred by limitation. (iii) the disputes between the parties stood settled as the bank guarantee was returned to the petitioner and (iv) that the present petition is also barred by limitation. Mr. Rajiv Sharma, the learned counsel for the petitioner submitted that the position of law laid down in respect of an appointment of an arbitrator is well settled by the Supreme Court in the following judgments (i) Konkan Railway Corporation Ltd. Vs Rani Construction Pvt. Ltd. reported as (2002) 2 SCC 388 @ Paras 18, 23; (ii) Hythro Power Corporation Ltd. vs Delhi Transco Ltd. reported as (2003) 8 SCC 35 @ P.8-9; (iii) Food Corporation of India vs Indian Council of Arbitration & Others reported as (2003) 6 SCC 564 @ 12, 14; (iv) Hindustan Petroleum Corprn. Ltd. vs Pinkcity Midway Petroleum reported as (2003) 6 SCC 503 @ 16; (v) State of Orissa & Others Vs Gokulanada Jena reported as (2003) 6 SCC 465 @ 8,10-11.