East Singhbhum v. Managing Director Steel Authority of India Ltd, Bokaro Steel Plant, Bok
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Arb. Application No.19 of 2023 M/s Hindustan Ploytex Industries Pvt. Ltd. having its factory at B-16, Second Phase Industrial Area, Jamshedpur Through its one of the directors Nirmal Kabra S/o Late B D Kabra Resident of Madhu Vatika, School Road, PO+PS-Jugugsalai, Dsit-East Singhbhum ... ... Applicant Versus Managing Director Steel Authority of India Ltd, Bokaro Steel Plant, Bokaro, Office at Ispat Bhawan, Bokaro Steel City PO + PS-Bokaro District- Bokaro, Jharkhand … … … Opposite Party ---------
Legal Reasoning
CORAM: SRI SANJAYA KUMAR MISHRA, C.J. --------- For the Applicant: For the Opposite Party: Mr. Indrajit Sinha, Advocate Mr. Dhbananjay Kumar Pathak, Advocate Reserved on: 08.12.2023 Pronounced on: 11.12.2023 --------- 1) In this application under Sub-section 6 of Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act” for brevity), read with Section 10 of the Commercial Courts Act, 2015, for referring the matter to Arbitration and appoint an arbitrator, there is no dispute that there is an agreement for referring the matter to the arbitration. There is also no dispute that the arbitral dispute exists between the parties. 2) It is argued by the respondent that as per the clause 21.0 of the NIT dated 15.03.2011, there is a mechanism/procedure for redressal of the dispute between the parties. The same is reproduced hereinbelow: “21.0 Arbitration: Matters in question, claims, dispute and or difference in respect of the contract to be submitted to arbitration as aforesaid shall be referred for decision to a Sole Arbitrator to be appointed by MD of Steel Plant / Head of unit, (SAIL). Before appointing the Sole Arbitrator, MD of Steel Plant/Head of unit, (SAIL) shall nominate three names out of/ which the contractor / supplier shall give his consent for one of them for appointment as Sole Arbitrator, failing which after 30 days of the issuance of the 2 Arb. Application No. 19 of 2023 letter informing three names MD of Steel Plant / Head of unit, (SAIL) shall have the power to appoint one of the three notified persons as the Sole Arbitrator. In case the designation of the Managing Director of Steel Plant (SAIL) is changed or his office abolished, the officer who for the time being is entrusted with the functions of the Managing Director of Steel Plant (SAIL), by whatever designation such officer is called, shall be the person designated to appoint the Sole Arbitrator. The arbitrator so appointed shall adjudicate upon the disputes between the parties hereto. The Sole Arbitrator appointed as stated above, shall from the time of his appointment and throughout the arbitration proceedings, without any delay, disclose to the parties in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality provided that the mere fact that such Sole Arbitrator is an employee of SAIL or its subsidiary shall not be regarded as such circumstances. The arbitrator shall decide the questions, claims, disputes or differences submitted to him by the parties in accordance with the substantive law for the time being in force in India. The arbitrator shall hear the cases independently and impartially and shall not represent the interest of any party. Any arbitrator having personal interest in the case at the time of his appointment and at any time subsequently thereafter must withdraw from his office himself and the parties shall also have the right to ask him to do so. The venue of the arbitration shall be __________ (For domestic tenders, the place where Plant / Unit is located; and for global tenders Delhi). Procedure for conduct of the arbitration proceeding shall be decided by the arbitrator, in consultation with the parties before proceeding with reference. The arbitrator may hold preparatory meeting(s) for this purpose. In the preparatory meeting(s) as aforesaid, the arbitrator/s as the case may be in consultation with the parties shall also determine the manner of taking evidence, the summoning of expert evidence, and all such matters as are necessary for the expeditious disposal of the arbitration proceedings. 3 Arb. Application No. 19 of 2023 The provision of the Arbitration and Conciliation Act, 1996 and the rules framed there under, if any and all modifications / amendments thereto shall deem to apply and / or be incorporated in this contract and when such modifications / amendments to the Act / Rules are carried out. Work/supply under the contract shall be continued by the contractor/supplier, under the contract, during the arbitration proceedings and recourse to arbitration shall not be a bar to continuance for the work or supply unless otherwise directed in writing by the Plant/ Unit. ” 3) However, in the case of M/s BGR Mining and Infra Pvt. Ltd Vs. Bharat Coking Coal Limited, Arbitration Application No. 10 of 2023, the judgment of which is pronounced in the Court today, we have already taken a view by relying upon the reported case of Visa International Ltd vs. Continental Resources (USA) Ltd, (2009) 2 SCC 55, that even without resorting to the alternative settlement of provisions a matter can be referred to arbitration. Hence, the application is allowed. The matter is referred to the arbitration. 4) In course of hearing, both the learned counsel appearing for the parties, would agree upon appointment of Sri Om Prakash Pandey, a retired District Judge of the State of Jharkhand, as the sole Arbitrator. 5) Hence, Sri Om Prakash Pandey, retired District Judge, is hereby, appointed as the Sole Arbitrator to preside over the Arbitral Tribunal and arbitrate the dispute between the parties. Learned Arbitrator would be free to lay down the fees and other expenses towards conduct of the arbitration proceedings, however keeping into account the ceiling prescribed under Schedule IV of the Act of 1996 as amended. Learned Arbitrator would endeavor to conclude the proceedings expeditiously, also taking into regard the mandate of the Legislature under Section 29-A of the Act of 1996. 4 Arb. Application No. 19 of 2023 6) The Registry is directed to intimate the Arbitrator so appointed to take up the arbitration proceeding and provide photocopy of the entire pleadings along with copy of the entire order sheet to the learned Arbitrator. 7) 8) 9) There shall be no orders as to costs.
Decision
Pending Interlocutory Applications, if any, stand disposed of. Urgent Certified copies as per Rules. A.F.R. MM/- (Sanjaya Kumar Mishra, C.J.)