OFFSHORE INFRASTRUCTURES LTD. Vs. BHARAT HEAVY ELECTRICALS LTD.

JUDGEMENT

(1.) Heard Shri Dharmadhikari, learned counsel for the applicant and Shri Bhutada, learned counsel for the non applicants.

(2.) The applicant is before this Court seeking modification of the order dated 9122015 passed by this Court in Misc. Civil Application No. 787/2014 and substituting the name of either of three persons who are proposed as arbitrator in the application in place of Shri Lalit Mohan who was initially appointed as an Arbitrator by this Court. This application raises an interesting issue before this Court. The parties were before this Court in Misc. Civil Application No. 787/2014 filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act of 1996') praying for appointment of arbitrator to resolve the dispute between the parties. Shri Dharmadhikari, learned counsel for the applicant referred to agreement between the parties and more particularly, clause 2.21 which provided that the dispute shall be referred to the arbitrator for an amicable settlement. The application was opposed by the nonapplicants. It was the submission of learned counsel appearing for the nonapplicants that the applicant failed to take required steps as per clause 2.21. On hearing the learned counsel appearing for the parties, this Court found that the claim of the applicant is a live claim and exercised the jurisdiction under Section 11(6) of the Act of 1996 and passed the order appointing Shri Lalit Moha, B.E. (Civil), PGD Earthquake Engineer, who is a technical person as the arbitrator to resolve the dispute between the applicant and nonapplicant. The other terms were referred to in the order in respect of the fees of the arbitrator etc.

(3.) The applicant is before this Court by submitting a peculiar circumstance. It is submitted that in view of the directions of this Court, the security amount toward the fees of the arbitrator is deposited along with process charges. It was submitted that after the appointment of the Arbitrator Shri Lalit Mohan and after depositing the requisite amount, communications were forwarded to Shri Lalit Mohan so as to inform him about his appointment. It is submitted by Shri Dharmadhikari, learned counsel that the list of arbitrators maintained by this Court was referring to two address of Shri Lalit Mohan, accordingly, on both these addresses, viz. (1) No. 892, 15th Main, 5th Cross, BTM II Stage, Bangalore ­ 560 076 and (2) H38, Nehru Nagar Colony, Dehradun ­ 248 801. communications were forwarded. Service report communicated that Shri Lalit Mohan is either not residing or is not available on the addresses stated in the communication. Photocopies of the envelopes with the endorsement are placed on record. Shri Dharmadhikari, learned counsel further submitted that even an attempt was made to contact Shri Lalit Mohan on his cell phone numbers as well as landline phone numbers maintained by the Registry of this Court. To this attempt, it was informed that when the calls were made, it was revealed that cell numbers and landline numbers are not in service. Shri Dharmadhikari, learned counsel then submitted that no stone was left unturned to contact Shri Lalit Mohan to communicate him that he was appointed as an arbitrator by this Court and in spite of all attempts, Shri Lalit Mohan could not be contacted. Shri Dharmadhikari, learned counsel further submitted that in view of these peculiar facts, the order passed by this Court appointing Shri Lalit Mohan as sole arbitrator be modified and name of Shri Lalit Mohan be substituted by any of the names which find place in the list of names of arbitrators and these persons having technical experts, namely,