SANTOSH KUMAR SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for brevity, the 'Act') for appointment of arbitrator for settlement of dispute between the parties.

(2.) THE admitted facts are that the parties entered into an agreement for use of car stand in Railway Station, Gwalior. The agreement was terminated by the respondents and security deposit and performance guarantee scheme were forfeited. The termination order is enclosed as Annexure 'B'. The applicant sent notice dated 13.12.2013 on the respondent No.2 for appointment of arbitrator. The said notice could not fetch any result. The applicant waited for thirty days and then filed the present application. Shri Prashant Sharma relied on (Datar Switchgears Ltd. vs. Tata Finance Ltd, 2000 8 SCC 151) and (Punj Lloyd Ltd. vs. Petronet MHB Ltd, 2006 2 SCC 638). and submits that later on and after filing of this application, the respondents cannot be permitted to appoint the arbitrator.

(3.) PER Contra, Shri Prakhar Dhengula, learned counsel for the respondents, relied on the reply and contended that as per clause 26 of agreement, the competent authority is General Manager, North Central Railway (NCR). The applicant should have preferred the application (Annexure 'C') to the said officer, whereas he preferred it before Divisional Commercial Manager (DCM) NCR, Jhansi. The application itself was not maintainable. However, the said application was put before the General Manager, NCR. The said authority by Annexure R -1 dated 24.4.2015 informed the applicant to chose two out of four arbitrators proposed. The applicant did not act on that and, therefore, this application is not maintainable. Another request letter dated 7.5.2014 (Annexure R -2) sent to applicant went in vain. In the present case, the agreement shows that it was entered into in the name of President of India. Clause 25 makes it clear that all the acts, which can be done in the name of President of India, can also be done on his behalf by senior DCM, Jhansi. Thus, powers were delegated to the said officer to act on behalf of President/General Manager. In the light of aforesaid, I am unable to hold that notice of applicant (Annexure 'C') was not addressed to the competent authority. The said application for appointment of arbitrator was preferred on 23.12.2013. Since no action was taken for considerable long time, the present application is filed before this Court on 29.1.2014. The respondents sent the letter (Annexure R -1) dated 24.4.2014 much after filing of the present application. Thus, as per Datar Switchgears Ltd. and Punj Lloyd Ltd. , the respondents cannot be permitted to proceed further and applicant has rightly preferred this application. In the facts and circumstances of this case, the present application is very well maintainable because the applicant has invoked the arbitration clause, sent notice in time but respondents have failed to respond to it within permissible limit. The Apex Court considered the judgment of Datar Switchgears Ltd. in its recent judgment, (Deep Trading Company vs. Indian Oil Corporation and others, 2013 4 SCC 35) and opined as under: -