GTL Infrastructure Limited v. Bharat Sanchar Nigam Limited

1. Mr. Akhil Sibal, learned Senior Counsel appearing for the petitioner in these petitions under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “1996 Act”), submits that the disputes, in these petitions, pertain to Agreements which are, by and large, similar and relate to passive infrastructure facilities, availed by the respondent and provided by the petitioner, and the grievance of the petitioner specially relates to non-payments of certain invoices raised by the petitioner. He points out that though the Agreements, in these four cases are otherwise identical, the ARB.P. 511/2020, ARB.P. 513/2020 and ARB.P. 540/2020 Agreement in Arb. P. 512/2020 provides for resolution of the disputes by the learned Arbitral Tribunal comprising three members, whereas the clause in the other three petitions does not mandatorily require arbitration by a three-member Arbitral Tribunal. He submits that as the disputes are identical and the Agreements are also similar, it would be appropriate if all the disputes are referred to a sole arbitrator, of sufficient standing, to arbitrate thereon.

2. Mr. Sameer Aggarwal, learned counsel for the respondent- Bharat Sanchar Nigam Limited (BSNL), submits that the BSNL has already nominated an arbitrator, consequent to the request made by the petitioner on 10th December, 2020. As the appointment has been made after these petitions were filed, it is clearly not permissible in view of the law laid down in Datar Switchgears Ltd. v. Tata Finance Ltd.[1] and UOI. v. Bharat Battery Mfg. Co. (P) Ltd.[2]

4. In view thereof, Arb. P. 511/2020, Arb. P. 513/2020 and Arb. P. 540/2020 are disposed of by appointing Hon’ble Mr Justice Madan B. Lokur as arbitrator, to arbitrate on the disputes between the parties, as set out in the Arbitration Petitions. The contact details of the learned arbitrator are provided as under:.

3. Mr. Aggarwal submits that that, insofar as Arb. P. 512/2020 is concerned, he would have to take instructions on whether the BSNL is agreeable to arbitration of the disputes relating to this petition by a sole arbitrator.

5. As requested by both sides, the fees of the learned arbitrator would be as per the 4th Schedule to the 1996 Act.

6. The arbitrator would also furnish the requisite disclosure in terms of Section 12(2) of the 1996 Act within one week of entering on reference thereof.

7. Arb. P. 511/2020, Arb. P. 513/2020 and Arb. P. 540/2020 stand disposed of accordingly. IA 10043/2020 in Arb. P. 540/2020 In view of the order passed in the petition, this application stands disposed of. Arb. P. 512/2020 Renotify on 12th