HINDUSTAN CONSTRUCTION COMPANY LTD Vs. IRCON INTERNATIONAL LIMITED

JUDGEMENT

(1.) The petitioner is seeking appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

(2.) There are valid arbitration agreements between the parties contained in clause 59.3 of the agreements dated 18th February, 2006. The petitioner validly invoked the arbitration vide notices dated 31st July, 2015 to adjudicate the disputes between the parties.

(3.) Learned senior counsel for the respondent has opposed this petition as premature on the ground that the agreements provide for conciliation proceedings by a conciliator before reference of the same to the arbitrator. It was submitted that the petitioner invoked the conciliation process but filed this petition without waiting for the conclusion of the conciliation proceedings and therefore, the petition was premature. It was submitted that the sole conciliator was appointed on 28th May, 2014 and vide notice dated 29th May, 2014, the conciliator called upon both the parties to file their claim/counter-claims. The petitioner did not file the claim before the conciliator who issued a reminder dated 25th March, 2015. Vide letter dated 9th April, 2015, the petitioner sought further time to file the claim before the conciliator. The petitioner filed the claim before the conciliator on 28th April, 2015. The respondent vide letter dated 26th May, 2015 sought time to respond to the petitioner's claim. The respondent filed the response as well as counter-claim before the conciliator on 14th August, 2015. In the meantime, vide letter dated 22nd July, 2015, the petitioner notified that there was failure of conciliation. The conciliator in the meantime vide letter dated 26th August, 2015 fixed the first hearing of the conciliation on 14th September, 2015. However, the petitioner vide letter dated 9th September, 2015 refused to appear before the conciliator and took a stand that conciliation proceedings stood terminated. The conciliator therefore terminated the conciliation proceedings vide order dated 17th September, 2015. The respondent vide letter dated 26th October, 2015 proposed the names of the arbitrators from the nominated panel of northern Railways to the Petitioner. The petitioner vide letter dated 30th October 2015, opposed the respondent's communication on the ground that the respondent forfeited its right in view of the filing of the present petition.