Whether the independant arbitrator be appointed as per amendment Act. 2015 ?
High court dismissed the application for appointment of fresh abitrator as already departmental arbitrator was appointed who terminated the arbitration proceedings due to non filing of claim -
Apex court held that However, on the fourth occasion, proceedings were simply terminated since no hearings were held on earlier occasions, he expected that his request might be accepted. The arbitrator could have issued a notice warning the appellant that no adjournment would be granted under any circumstances. Since, no such warning was given, we deem it appropriate to set aside the order of termination. Appellant had made a claim on account of delay as indicated in his letter dated 18.10.2013 under various heads. In the interest of justice, in our considered view, an opportunity is to be afforded to the appellant to go before the departmental arbitrator (as agreed by the parties in clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. We are conscious that after the Amendment Act, 2015, there cannot be a departmental arbitrator. As discussed earlier, in this
case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked. In the result, the appeals are disposed of with the following directions:- (i) the proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of clause (65) of the agreement. (ii) the appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 11824-11825 OF 2018
(Arising out of SLP(C) Nos.1274-75 of 2015)
SP SINGLA CONSTRUCTIONS PVT. LTD. …Appellant
VERSUS
STATE OF HIMACHAL PRADESH AND
ANOTHER …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgments dated 10.03.2014 in
Arbitration Case No.4049 of 2013 and dated 01.09.2014 in Review
Petition No. RPST/20087/2014 passed by the High Court of
Himachal Pradesh in and by which the High Court dismissed the
Arbitration Petition and Review Petition filed by the appellant
declining to appoint arbitrator holding that as per the terms of the
agreement, arbitrator had already been appointed.
3. Brief facts which led to the filing of these appeals are as
follows:-
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The appellant was awarded construction work contract on
19.12.2006 relating to balance work of 214.00 mtrs. span C/C
bearings on abutment bridge over river Beas at Harsipattan on
Mandi Rewalsar Chandesh-Rakhota Maserah Sarkaghat Tihra
Sandhole Alampur Jawalamukhi road for a sum of
Rs.14,29,81,500/-. An agreement was also entered into between
the parties and clause (65) of the General Conditions of Contract
contains arbitration clause. The period allowed for completion of
work was on or before 04.01.2009. However, extension was granted
to the appellant up to 30.06.2010. The work was completed by the
appellant on 04.06.2011 and payment for the execution of work was
made. The appellant raised a dispute and requested for the
appointment of arbitrator vide its letter dated 18.10.2013. Pursuant
to the request of the appellant, the Chief Engineer, HPPWD
appointed the “Superintendent Engineer, Arbitration Circle, HPPWD,
Solan” as the arbitrator on 30.10.2013 and the said appointment
had been made in terms of clause (65) of the agreement. The
arbitrator entered upon reference on 11.11.2013. The appellant
after requesting for the appointment of arbitrator either remained
absent from the proceedings or sought adjournments stating that he
intends to challenge the appointment of arbitrator before the Chief
Justice as per the provisions of Arbitration and Conciliation Act,
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1996. Even after hearing, no statement of claim was filed by the
appellant. On 06.08.2014, arbitration proceedings were terminated
under Section 25(a) of the Arbitration and Conciliation Act, 1996.
4. Being aggrieved by the appointment of “Superintendent
Engineer, Arbitration Circle, Solan, HPPWD” as the arbitrator, the
appellant filed petition before the High Court under Section 11(6) of
the 1996 Act praying for appointment of independent arbitrator. The
High Court placed reliance upon the judgment of this Court in
Antrix Corporation Limited v. Devas Multimedia Private Limited
(2014) 11 SCC 560 wherein it was held that in case, if any party is
dissatisfied or aggrieved by the appointment of arbitrator in terms of
the agreement by other party/parties, his remedy would be by way
of petition under Section 13 of the 1996 Act, and, thereafter while
challenging the award under Section 34 of the 1996 Act. The High
Court held that the appointment of “Superintendent Engineer” as
arbitrator being in terms of clause (65) of the agreement,
Section 11(6) of the Act cannot be invoked. The appointment of
arbitrator could not be challenged by way of an application under
Section 11(6) of the 1996 Act. Being aggrieved by the dismissal of
the arbitration petition, the appellant is before us.
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5. On behalf of the appellant, learned senior counsel Mr.
Maninder Singh submitted that the appointment by office after
coming into operation of the 1996 Act, was no more permissible and
any appointment could only be made in terms of Section 11 of 1996
Act. It was further submitted that since the arbitrator appointed by
office had entered upon the reference, the appellant was compelled
to file Arbitration Petition No.4049 of 2013 and the High Court
erroneously rejected the prayer made on behalf of the appellant for
appointment of an independent arbitrator by name. The learned
senior counsel further submitted that the arbitrator appointed by
office, is an employee in service of the HPPWD which the provision
of Section 12(5) bars at the threshold. Learned senior counsel
placed reliance upon Ratna Infrastructure Projects Pvt. Ltd. v.
Meja Urja Nigam Private Limited (2017) SCC Online Del 7808.
6. Refuting the above contention, on behalf of the respondentState,
learned counsel submitted that the appointment of
Superintendent Engineer, Arbitration Circle is as per clause (65) of
the agreement and as per the provisions of law. In response to the
contention that Section 12(5) of the Amendment Act, 2015 bars
appointment of arbitrator by post, the learned counsel for the State
placed reliance upon Board of Control for Cricket in India v.
4
Kochi Cricket Private Limited and others (2018) 6 SCC 287 and
submitted that the provisions of the Amendment Act, 2015 shall
apply in relation to arbitral proceedings commenced on or after the
date of commencement of the Amendment Act, 2015 and shall not
apply to the arbitral proceedings commenced prior to the
Amendment Act, 2015 unless the parties otherwise agree. The
learned counsel submitted that the provision contained in clause
(65) of the general conditions of the Contract would not amount to
agreement of the parties so as to imply application of the provisions
of the Amendment Act, 2015.
7. We have carefully considered the contentions of the parties
and perused the impugned judgment and materials on record. The
point falling for consideration in this appeal is that in the light of the
agreement between the parties in clause (65) of the general
conditions of contract whether the appellant/contractor can
challenge the appointment of the Superintendent Engineer,
Arbitration Circle as Arbitrator to resolve the dispute between the
parties.
8. By the order of HPPWD dated 30.10.2013, the
Superintendent Engineer, Arbitration Circle, HPPWD, Solan was
appointed as the sole Arbitrator to decide and make its award
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regarding claim/dispute given by the appellant/contractor. The main
thrust of challenge for appointment of sole arbitrator was on the
ground that the arbitrator had not been appointed by name but, had
been appointed by designation. It was submitted that appointment
of arbitrator by office is not permissible and appointment ought to
have been made by name and the same is evident from bare
perusal of clause (65) of the contract. It was submitted that as per
Section 11(1) of the 1996 Act “a person of any nationality may be
an arbitrator, unless otherwise agreed by the parties…….”. It was
submitted that the Arbitrator appointed by the office is not an
appointment in terms of clause (65) of the contract and this aspect
has not been properly considered by the High Court.
9. For proper appreciation of the contentions, we may usually
refer to Clause (65) of the general conditions of contract which
reads as under:-
“Clause 65 of the General Conditions of Contract-…..Except
where otherwise provided in the contract all questions and disputes
relating to the meaning of the specifications, designs drawings and
instructions therein before mentioned and as to the quality of
workmanship of materials used on the work or as to any other
question, claim, right matter or thing whatsoever in any way arising
out of or relating to the contractor designs drawings, specification
and estimates, instructions orders or these conditions otherwise
concerning the works of the execution or failure to execute the
same whether arising during the progress of the work or after the
completion or abandonment thereof shall be referred to the sole
arbitration of the person appointed by the Engineer-in-Chief/Chief
Engineer, Himachal Pradesh Public Works Department. It will be no
objection to any such appointment that the arbitrator so appointed
is a Government servant that he had to deal with the matters to
6
which the contract relates, and that in the course of his duties as
Government servant he had expressed views on all or any of the
matters in dispute or different. The arbitrator to whom the matter is
originally referred being transferred or vacating his office or being
unable to act for any reason that (sic) the Chief Engineer, HPPWD
at the time of such transfer vacation of office or inability to act shall
appoint another person to act as arbitrator in accordance with the
terms of the contract. Such person shall be entitled to proceed with
the reference from the stage at which it was left by his predecessor,
it is also a terms of this contract that no person other than a person
appointed by the Chief Engineer, HPPWD, should act as arbitrator
and if for any reason that is not possible the matter is not be claim
in dispute is Rs.50,000/- (Rupees Fifty Thousand) and above, the
arbitrator shall give reasons for the award.
Subject as aforesaid the provision of the Arbitration Act, 1940 or
any statutory modification or re-enactment thereof and the rules
made thereunder and for the time being shall apply to the
arbitration proceeding under this clause.” [Underlining added]
10. A perusal of clause (65) makes it apparently clear that it was
permissible to appoint a person by designation and this will be
evident from clause (65), in particular the sentence “the arbitrator to
whom the matter is originally referred being transferred or vacating
his office or being unable to act for any reason the Chief Engineer is
to appoint another person….”. If appointments were only to be
made by name and not by designation there could be no question of
further appointment on the Arbitrator vacating his office. It is only
when an Arbitrator is appointed by designation that the question of a
vacancy upon the incumbent vacating office could arise thereby
enabling the Chief Engineer to appoint another person to act as
arbitrator. The Superintendent Engineer, Arbitration Circle appointed
as the Arbitrator is from the very arbitration circle, HPPWD and such
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appointment is only as per clause (65) of the contract and we find
no merit in the objection raised by the appellant.
11. Likewise, there is no merit in the contention of the appellantcontractor
that the appointed arbitrator is an employee in service of
the HPPWD which the provision of Section 12(5) of the 1996 Act (as
amended w.e.f. 23.10.2015) bars at the threshold itself. In a catena
of judgments, the Supreme Court held that arbitration clauses in
government contracts providing that an employee of the department
will be the sole arbitrator are neither void nor unenforceable.
[Indian Oil Corporation Limited and others v. Raja Transport
Private Limited (2009) 8 SCC 520, Ace Pipeline Contracts (P)
Ltd. v. Bharat Petroleum Corporation Limited (2007) 5 SCC 304,
Union of India and another v. M.P. Gupta (2004) 10 SCC 504]
The fact that a named arbitrator is an employee of one of the parties
is not ipso facto a ground to raise a presumption of bias or lack of
independence on his part. The arbitration agreements in
government contracts providing that an employee of the department
or a higher official unconnected with the work or the contract will be
the arbitrator are neither void nor unenforceable.
12. Observing that, in government contracts before appointing
arbitrators, the appointing authority should be more vigilant and
8
more responsible in choosing arbitrators who are in a position to
conduct arbitral proceedings in an efficient manner without
comprising with the other duties, in Union of India v. Uttar
Pradesh State Bridge Corporation Limited (2015) 2 SCC 52, it
was held as under:-
“17. In the case of contracts between government
corporations/State-owned companies with private
parties/contractors, the terms of the agreement are usually drawn
by the government company or public sector undertakings.
Government contracts have broadly two kinds of arbitration
clauses, first where a named officer is to act as sole arbitrator; and
second, where a senior officer like a Managing Director, nominates
a designated officer to act as the sole arbitrator. No doubt, such
clauses which give the Government a dominant position to
constitute the Arbitral Tribunal are held to be valid. At the same
time, it also casts an onerous and responsible duty upon the
persona designata to appoint such persons/officers as the
arbitrators who are not only able to function independently and
impartially, but are in a position to devote adequate time in
conducting the arbitration. If the Government has nominated those
officers as arbitrators who are not able to devote time to the
arbitration proceedings or become incapable of acting as arbitrators
because of frequent transfers, etc., then the principle of “default
procedure” at least in the cases where Government has assumed
the role of appointment of arbitrators to itself, has to be applied in
the case of substitute arbitrators as well and the Court will step in to
appoint the arbitrator by keeping aside the procedure which is
agreed to between the parties. However, it will depend upon the
facts of a particular case as to whether such a course of action
should be taken or not. What we emphasise is that Court is not
powerless in this regard.”
As pointed out earlier, in the case at hand, the Superintendent
Engineer, Arbitration Circle, HPPWD was appointed as the sole
Arbitrator who, by virtue of his designation, regularly does the
arbitration devoting time to the arbitration proceedings and such
9
appointment of Superintendent Engineer cannot be said to be a
deviation from clause (65) of the agreement.
13. Any challenge regarding the appointment of an arbitrator as
per the terms of the agreement between the parties must be viewed
in the context of the agreement between the parties. As pointed out
earlier, the parties have mutually agreed that there will be sole
Arbitration by the person appointed by the Engineer-in-Chief and
that the appellant shall have no objection to any such appointment
that the Arbitrator so appointed is a Government Servant. If the
appellant has any grievance that the appointment of the arbitrator is
by ‘post’ and not by ‘person’, the appellant ought to have raised the
challenge before the arbitrator in the first instance. Be it noted, in
the petition filed before the High Court under Section 11(6) of the
Arbitration and Conciliation Act, 1996 on 28.12.2013, the appellant
has only prayed for quashing the appointment of the Superintendent
Engineer, Arbitration Circle, HPPWD, Solan as the sole arbitrator as
unconstitutional and sought for appointment of an independent and
impartial sole arbitrator to adjudicate the dispute between the
parties. It is fairly well settled that any challenge to the arbitrator
appointed ought to have been raised before the arbitrator himself in
the first instance.
10
14. Drawing our attention to the wordings in Clause (65) “that the
agreement is subject to any statutory modification or re-enactment
thereof and the rules made thereunder and for the time being shall
apply to the arbitration proceeding under this clause” the learned
senior counsel contended that these words would certainly attract
Section 12(5) of the Act as amended with effect from 23.10.2015. In
this regard, the learned senior counsel placed reliance upon Delhi
High Court judgment in Ratna Infrastructure Projects Pvt. Ltd. v.
Meja Urja Nigam Private Limited (2017) SCC Online Del 7808
wherein interpreting the similar words in a contract, Delhi High Court
held that those words satisfy the requirement of Section 26
(amended Act of 2015) of there being an agreement between the
parties that the Act as amended with effect from 23.10.2015 will
apply and held as under:-
“22. ……. The words “any statutory modification or re-enactment
thereof and the rules made thereunder and for the time being in
force shall apply to the arbitration…” satisfies the requirement of
Section 26 of there being an agreement between the parties that
the Act as amended with effect from 23rd October 2015 will apply.
The Court is not prepared to draw the fine distinction between
‘agree’ and ‘agreed’. Once the amendment to the clause clearly
stated that all statutory modidications and re-enactments would
apply, then there is no need for further agreement in that respect
after 23rd October, 2015. The plea of the Respondent in this regard
is rejected.
23. The net result is that Section 12(5) as amended with effect from
23rd October 2015 would apply. Section 12(5) clearly prohibits the
employee of one of the parties from being an Arbitrator. This would
straightway disqualify Mr. Kher who happens to be a serving GM of
the Respondent. Therefore it is to no avail that the Respondent has
by its letter dated 21st August 2016 appointed Mr. Kher as an
11
Arbitrator to adjudicate the Arbitration Case Nos. 1 of 2013 and 1 of
2014. His mandate stands terminated.”
15. Considering the facts and circumstances of the present case,
we are not inclined to go into the merits of this contention of the
appellant nor examine the correctness or otherwise of the above
view taken by the Delhi High Court in Ratna Infrastructure Projects
case; suffice it to note that as per Section 26 of the Arbitration and
Conciliation (Amendment) Act, 2015 the provisions of the Amended
Act, 2015 shall not apply to the arbitral proceedings commenced in
accordance with the provisions of Section 21 of the Principal Act
before the commencement of the Amendment Act unless the parties
otherwise agree. In the facts and circumstances of the present
case, the proviso in clause (65) of the general conditions of the
contract cannot be taken to be the agreement between the parties
so as to apply the provisions of the amended Act. As per Section
26 of the Act, the provisions of the Amendment Act, 2015 shall apply
in relation to arbitral proceedings commenced on or after the date of
commencement of the Amendment Act, 2015 (w.e.f. 23.10.2015).
In the present case, arbitration proceedings commenced way back
in 2013, much prior to coming into force of the amended Act and
therefore, provisions of the Amended Act cannot be invoked.
12
16. In Board of Control for Cricket in India v. Kochi Cricket
Private Limited and others, (2018) 6 SCC 287, this Court has held
that the provisions of Amendment Act, 2015 (with effect from
23.10.2015) cannot have retrospective operation in the arbitral
proceedings already commenced unless the parties otherwise
agree and held as under:-
“37. What will be noticed, so far as the first part is concerned,
which states—
“26. Act not to apply to pending arbitral
proceedings.—Nothing contained in this Act shall
apply to the arbitral proceedings commenced, in
accordance with the provisions of Section 21 of the
principal Act, before the commencement of this Act
unless the parties otherwise agree.…”
is that: (1) “the arbitral proceedings” and their commencement is
mentioned in the context of Section 21 of the principal Act; (2) the
expression used is “to” and not “in relation to”; and (3) parties may
otherwise agree. So far as the second part of Section 26 is
concerned, namely, the part which reads, “… but this Act shall apply
in relation to arbitral proceedings commenced on or after the date
of commencement of this Act” makes it clear that the expression “in
relation to” is used; and the expression “the” arbitral proceedings
and “in accordance with the provisions of Section 21 of the principal
Act” is conspicuous by its absence.”
17. Immediately after the appointment of the Superintendent
Engineer, Arbitration Circle as the sole Arbitrator (30.10.2013), the
appellant preferred Arbitration Petition No.4049/2013 (28.12.2013)
before the High Court under Section 11(6), 14 and 15 of the
Arbitration and Conciliation Act, 1996 for appointment of an
independent sole Arbitrator.
13
18. The High Court placed reliance upon the judgment in Antrix
Corporation Limited v. Devas Multimedia Private Limited (2014)
11 SCC 560 and held that when the Superintendent Engineer,
Arbitration Circle was appointed as the Arbitrator in terms of the
agreement (or arbitration clause), the provisions of sub-section (6)
of Section 11 cannot be invoked again. The High Court further
observed that in case, the other party is dissatisfied or aggrieved by
the appointment of an arbitrator in terms of the agreement, his
remedy would be by way of petition under Section 13 and thereafter
while challenging the award under Section 34 of the 1996 Act.
19. The High Court in the impugned judgment placed reliance
upon the judgment in Antrix Corporation Limited v. Devas
Multimedia Private Limited (2014) 11 SCC 560 wherein the
Supreme Court held as under:-
“31. The matter is not as complex as it seems and in our view, once
the arbitration agreement had been invoked by Devas and a
nominee arbitrator had also been appointed by it, the arbitration
agreement could not have been invoked for a second time by the
petitioner, which was fully aware of the appointment made by the
respondent. It would lead to an anomalous state of affairs if the
appointment of an arbitrator once made, could be questioned in a
subsequent proceeding initiated by the other party also for the
appointment of an arbitrator. In our view, while the petitioner was
certainly entitled to challenge the appointment of the arbitrator at
the instance of Devas, it could not do so by way of an independent
proceeding under Section 11(6) of the 1996 Act. While power has
been vested in the Chief Justice to appoint an arbitrator under
Section 11(6) of the 1996 Act, such appointment can be questioned
under Section 13 thereof. In a proceeding under Section 11 of the
1996 Act, the Chief Justice cannot replace one arbitrator already
appointed in exercise of the arbitration agreement.”
14
……….
33. Sub-section (6) of Section 11 of the 1996 Act, quite
categorically provides that where the parties fail to act in terms of a
procedure agreed upon by them, the provisions of sub-section (6)
may be invoked by any of the parties. Where in terms of the
agreement, the arbitration clause has already been invoked by one
of the parties thereto under the ICC Rules, the provisions of subsection
(6) cannot be invoked again, and, in case the other party is
dissatisfied or aggrieved by the appointment of an arbitrator in
terms of the agreement, his/its remedy would be by way of a
petition under Section 13, and, thereafter, under Section 34 of the
1996 Act.”
In the present case, the Arbitrator has been appointed as per clause
(65) of the agreement and as per the provisions of law. Once, the
appointment of an arbitrator is made at the instance of the
government, the arbitration agreement could not have been invoked
for the second time.
20. As pointed out earlier the Arbitrator has already entered upon
reference on 11.11.2013. The Arbitrator had first hearing on
07.12.2013; on which date appellant-contractor was absent. For the
next date of hearing on 13.03.2014 the Arbitrator has recorded the
finding that the appellant-claimant-contractor was absent without
any intimation to the Tribunal. In this regard, Mr. Maninder Singh,
the learned Senior Council for the appellant has drawn our attention
to the letter dated 12.03.2014 sent by the appellant requesting for
adjournment. Similarly, in the next date of hearings before the
arbitrator namely, 03.04.2014, 25.04.2014 and 06.08.2014 the
15
appellant-contractor did not appear; but only sent the letters
requesting for adjournment. On 03.04.2014, the matter was
adjourned to 25.04.2014 directing that both parties to come
prepared for the next date of hearing on 25.04.2014. Similar was
the order passed on 25.04.2014 that both parties have to come
prepared for the next date of hearing on 06.08.2014. Since the
appellant-claimant did not appear before the Arbitrator, the Arbitrator
terminated the proceedings on 06.08.2014 under Section 25(a) of
the 1996 Act.
21. Section 25 of the Arbitration Act, 1996 deals with the situation
where the parties commit default without showing sufficient cause
and consequent termination of the proceedings. Section 25
provides three situations where on account of the default of a party,
the arbitral tribunal shall terminate the proceedings which are as
under:-
(i) Under Section 25(a) where the claimant fails to
communicate his statement of claim in accordance
with sub-section (1) of Section 23;
(ii) Under Section 25(b) continue the proceedings on the
failure of the respondent to communicate his claim of
defence in accordance with sub-section (1) of
Section 23;
(iii) Under Section 25(c) continue the proceedings, and
make the arbitral award on the evidence before it, in
16
the event of a party failing to appear at an oral
hearing or produce documentary evidence.
Section 25(a) provides that the Arbitral Tribunal shall terminate the
proceedings where the claimants failed to communicate his claim in
accordance with sub-section (1) of Section 23 of the Act. In the
present case, the appellant has failed to file his statement of claim;
and only sent the communication to the arbitrator seeking
adjournment on the ground that the appellant has approached the
High Court by filing petition under Section 11(6) of the Act. When
the parties have specifically agreed for appointment of sole
Arbitrator of the person appointed by the Engineer-in-Chief/Chief
Engineer, HPPWD, the appellant was not right in approaching the
High Court seeking appointment of an independent Arbitrator.
22. Inspite of extension of time, since the appellant-contractor had
not filed statement of claim, the arbitrator terminated the
proceedings under Section 25(a) of the 1996 Act by proceedings
dated 06.08.2014. The appellant-contractor did not file his
statement of claim before the arbitrator since the appellant had
approached the High Court by filing petition under Section 11(6) of
the 1996 Act, probably under the advice that the appellant can get
an independent arbitrator appointed. The appellant had been
writing letters to the arbitrator before the hearing seeking
17
adjournment. However, on the fourth occasion, proceedings were
simply terminated since no hearings were held on earlier occasions,
he expected that his request might be accepted. The arbitrator
could have issued a notice warning the appellant that no
adjournment would be granted under any circumstances. Since, no
such warning was given, we deem it appropriate to set aside the
order of termination. Appellant had made a claim on account of
delay as indicated in his letter dated 18.10.2013 under various
heads. In the interest of justice, in our considered view, an
opportunity is to be afforded to the appellant to go before the
departmental arbitrator (as agreed by the parties in clause (65) of
the general conditions of contract) and the proceedings of the
arbitrator dated 06.08.2014 terminating the proceedings is to be set
aside. We are conscious that after the Amendment Act, 2015, there
cannot be a departmental arbitrator. As discussed earlier, in this
case, the agreement between the parties is dated 19.12.2006 and
the relationship between the parties are governed by the general
conditions of the contract dated 19.12.2006, the provisions of the
Amendment Act, 2015 cannot be invoked.
23. In the result, the appeals are disposed of with the following
directions:-
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(i) the proceedings of the arbitrator dated 06.08.2014
terminating the arbitral proceedings is set aside. In terms
of clause (65) of the general conditions of contract, the
Chief Engineer, Himachal Pradesh Public Works
Department is directed to appoint an arbitrator in terms
of clause (65) of the agreement.
(ii) the appellant shall file his claim before the arbitrator
so nominated and the arbitrator shall afford sufficient
opportunities to both the parties and proceed with the
matter in accordance with law.
We make it clear that we have not expressed any opinion on the
merits of the claim of the appellant.
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[INDIRA BANERJEE]
New Delhi;
December 04, 2018
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