SIMPLEX INFRASTRUCTURES LTD Vs. RAIL VIKAS NIGAM LIMITED

JUDGEMENT

(1.) This petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner seeking appointment of a nominee Arbitrator on behalf of the respondent and the Presiding Arbitrator for constitution of the Arbitral Tribunal to adjudicate the disputes that have arisen between the parties in relation to the Agreement dated 28.01.2011 by which the respondent has awarded the work of construction of Viaduct including the related works for 4.748 Km length excluding the station areas from Ch. (-) 1250.00 to Ch.4128.00 between Joka to Behala Chowrasta including the depot approach at Joka, in Joka - BBD bag corridor of Kolkata Metro Railway Line to the petitioner.

(2.) The Agreement contains an Arbitration Agreement between the parties in form of Clause 17.3 of General Conditions of Contract (GCC) which is reproduced hereinbelow:

(3.) The disputes having arisen between the parties, the petitioner invoked the Arbitration Agreement vide its letter dated 26.12.2017. In the said letter, the petitioner inter-alia relying upon the judgment of the Supreme Court in Voestalpine Schienen GMBH v. Delhi Metro Rail Corporation, 2017 4 SCC 665 and of this Court in Afcons Infrastructure Pvt. Ltd. v. Rail Vikas Nigam Limited,2017 SCCOnLine(Del) 8675, contended that the procedure for appointment of the Arbitral Tribunal as provided in Clause 17.3 (ii) would no longer be valid and therefore, nominated its own Arbitrator.