SUPREME COURT OF
You One Maharia
v.
National Highways
C. K. THAKKER, J
ARBITRATION PETITION NO. 12 OF 2007
AUGUST 21, 2007
Section 11 of Arbitration and Conciliation Act, 1996 -
Arbitrators - Appointment of - Petitioner company entered into an agreement
with respondent authority for execution of work contract - On disputes, as
provided in arbitration clause of agreement, both parties nominated their
Arbitrators - As matter was of a technical nature, appointment of third
Arbitrator was desired - Petitioner insisted that Presiding Arbitrator would be
retired Judge of Supreme Court or retired Chief Justice of a High Court -
Whether in view of fact that Arbitration clause clearly provided that presiding
Arbitrator would be appointed by council of IRC, petitioner could not compel
respondent to agree for a retired Judge of Supreme Court or retired chief
Justice of a High Court as Presiding Arbitrator - Held, yes
FACTS
The petitioner
company entered into an agreement with the respondent authority for execution
of work contract. Disputes arose between parties and as provided in the said
agreement, both the parties had nominated their Arbitrator. The respondent
intended to appoint a technical man as the Third Arbitrator as the matter was
of a ‘highly technical nature’ whereas the arbitrator appointed by the
petitioners insisted that the Presiding Arbitrator should be a retired Chief
Justice or a Judge of a High Court, who should be senior to him. Since the
parties could not agree as to appointment of Third/Presiding Arbitrator, the
petitioner had filed a petition praying therein that the Chief Justice of India
may be pleased to appoint a retired Judge of the Supreme Court of India or a
retired Chief Justice of High court as Presiding Arbitrator.
HELD
A bare reading
of arbitration clause of the agreement left no room for doubt that in case of failure of the two Arbitrators appointed by
the parties to reach upon a consensus, the Presiding Arbitrator ‘shall be appointed by the
Council of IRC’. [
The
petitioners could not compel the respondent to agree for a retired Judge of
this Court or retired Chief Justice of a High Court. as Presiding Arbitrator. [
When the Arbitration Clause was clear and the point, was concluded
by a decision of this court, it would not be proper to make any such
observation. It was however, open to the respondent to take an appropriate
decision in the matter keeping in view the facts in their entirety. This
decision would not inhibit the respondent in taking any decision as it thinks
fit. ]
The
application was to be dismissed accordingly. [