M/S Ashoka Enterprises v. Union of India

1. By way ofthese two petitions under Section 11 ofthe Arbitration and Conciliation Act, 1996["the Act"],the petitioner seeks appointment ofindependent arbitrators to adjudicate the disputes arising between the petitioner and the Union ofIndia under contracts dated 11.11.2019 and 23.07.2018 respectively.

2. It is submitted by Mr. S.W. Haider, learned counsel for the petitioner that, disputes under both contracts are required to be resolved by arbitration in terms of Clause 64 of the General Conditions of Contract. Mr. Haider further submits that in both cases, the petitioner ARB.P.80H2022&ARB.P.808/2022 Page[1] of[3] 2022:DHC:6029 invoked the arbitration clause [letters dated 04.05.2022 and 30.04.2022 respectively]to which the respondentrequested the petitioner to waive its rights under Section 12(5)ofthe Arbitration and Conciliation Act,2015, and thus to enable adjudication by an officer of the Railways. The petitioner is not agreeable to such a course ofaction.

3. It is in these circumstances that the petitioner has filed these petitions for appointment ofindependent arbitrators.

4. Notice was issued in these petitions on 18.07.2022, and learned counsel for the respondent-Union of India was given an opportunity to take instructions. It was also directed that the respondent may file replies to these petitions within two weeks positively, if it intends to resist the appointmentofan independent arbitrator.

5. No replies have been filed. However, Mr. Om Prakash, learned counsel for the respondent, submits that the invocation letters issued on behalf of the petitioner indicate that no claims certificates have been submitted prior to the invocation ofthe arbitration clauses. Mr. Prakash requests that in such circumstances, the respondent will contest the arbitrability ofthe disputes, which may be left open for consideration of the learned arbitrator.

6. In view ofthe aforesaid submissions,the petitions are disposed of with the following directions a) The disputes between the parties are referred to the arbitration of Ms.Avnish Ahlawat,Advocate[Mobile No.9810134741]. b) At the request of learned counsel for the parties, a common arbitrator is appointed in both the proceedings.However,it is made clear that there will be two separate references. The parties will be ARB.P.807/2022&ARB.P.808/2022 Page2of[3] s

7. entitled to file their claims and defencesindependently,and to lead evidence independently. c) The learned arbitrator is requested to make a declaration in terms ofSection 12ofthe Actbefore entering into thereference. d) The remuneration of the learned arbitrator will be computed in accordance with the Fourth Schedule ofthe Act. e) All rights and contentions of the parties are left open for adjudication before the learned arbitrator. The petition stands disposed ofwith these directions. PRATEEKJALAN,J AUGUST 22,2022 'pv' Click here to check corrigendum, ifanv ARB.P.807/2022&ARB.P.808/2022 Page3of[3]