C& C CONSTRUCTION LTD Vs. IRCON INTERNATIONAL LTD

JUDGEMENT

(1.) This petition under Section 14 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner seeking termination of the mandate of the Arbitral Tribunal that has been constituted by the respondent to adjudicate the disputes that have arisen between the parties in relation to the work of construction of Railway Over Bridge at five places namely, (i) Dadi Ka Phatak (LC-89), (ii) Khirni Ka Phatak (LC-228), (iii) Bindayaka (LC-233), (iv) Bassi (LC-200) and (v) Reengus (LC- 108) in Jaipur, Rajasthan awarded in favour of the petitioner under Letter of Award dated 16.05.2012.

(2.) The Arbitration Agreement between the parties is contained in Clause 73 of the Agreement. Clause 73.4(a)(ii) is relevant for the present petition and is reproduced herein under:-

(3.) The Arbitration Agreement provides that upon a request received from the petitioner, the respondent would send a panel of more than three names to the Contractor/petitioner to choose its nominee Arbitrator. The Contractor/petitioner would choose two names out of the panel and it would be the Managing Director of the respondent who would finally appoint the nominee Arbitrator of the Contractor/petitioner from the two names suggested by it. Factually therefore, it is the Managing Director who appoints the nominee Arbitrator for the Contractor. The Managing Director is also empowered to appoint the remaining two arbitrtaors, including the Presiding Arbitrator and therefore, a holistic reading of the Arbitration Agreement between the parties would suggest that it is only the respondent which is empowered to appoint the Arbitral Tribunal, though giving an impression of choice to the Contractor to appoint its own nominee Arbitrator.