MAA ENTERPRISE Vs. UNION OF INDIA

JUDGEMENT

(1.) The request under Section 11 of the Arbitration and Conciliation Act, 1996 has been carried by a contractor following the failure of the appointing authority recognised in the arbitration agreement to constitute an arbitral tribunal to adjudicate upon the disputes raised by the petitioner. The arbitration agreement is contained in clause 25 of the special conditions governing the contract. Most of the arbitration agreement is not in dispute, except the following :-

(2.) The respondent does not question either the existence of the arbitration agreement between the parties or the fact that the petitioner had invoked the same by calling upon the Chief Engineer of the Central Public Works Department to appoint an arbitrator to adjudicate upon the disputes that have arisen between the parties; the respondent says that the clause unequivocally mandates that only the Chief Engineer or the Additional Director General or Director General of CPWD may nominate an arbitrator. It is the respondents assertion that if the nomination of the arbitrator cannot made by any of the named officials of CPWD, there would be no arbitration at all.

(3.) Though it has not been expressly so submitted on behalf of the respondent, the substance of such argument is that the contractor is not left without a remedy in such a situation as it will be open to the contractor to institute a regular action before a Civil Court in respect of the contractors claim. What the respondent maintains is that if there were to be an adjudication of the disputes covered by the arbitration agreement, such adjudication has to be before an arbitrator appointed by the officials of CPWD mentioned in the clause and not by any other appointee.