Aushalya Infrastructure Development Corporation Limited v. n~CON Soma Tollyway Private Limited

1. T1iis is a petition filed under tSection:'.,[1] 1.of the Arbitration and Conciliation Act, 1996 (in short"1996 A~f~).': ':,,:,, Ii",:, ',:.. " t:,:' >".:'\', ":'~,:.,'.

2. Notice in this petition was issued~bli:03,'Q'8;:1017, The record shows I '. 1';," • ·:t..,"j';, ','..~' that petitioner took a long time ill' effcptit)g s¢ryice on"the respondent. As a. I ("..... ~~~.~~.,_.':.:::~~~~~...::~:} ',~..:~.' matter of. fact, on 9.4.2018, opportunity~·was, given to the petitioner to serve I the respondent by directing issuance of a fresh notice, subject to the payment, I, ' of cost of Rs.15,000/-. The cost was required. to, qe deposited with the Delhi I •,,< • " ' High Cou~ Legal Services Committee','. " I

3. Despite this direction, there was default on the part of the petitioner. However,'finally, cost was paid and service was effected. This is discernible upon a pei'usal of orders dated 20.8.2018 and 26.10.2018. I

4. On the last occasion, it was noticed that the respondent was served yet I ARB.P. No,4S012017 Pg. 10/4 2018:DHC:8966 there was no appearance on. behalf of the respondent. However, adverse orders were deferred and the matter was posted for hearing on 19.11.2018, that is, today. Even today, there is no appearance on behalf of the respondent.

5. The record shows that the petitioner was awarded a contract for routine maintenance & engineering improvement of Pimpalgaon-Dhule Section from 261.720 km. to 379.878 km., on National Highway-3, in the State of Maharashtra (hereafter referred to as "subject works"). I '/. i '!,. '. /., 5.[1] A formal contract after the usu~l.ljja~irig.process was executed t.J between theiparties on 2.4.2012... "'''t -,., '.'.:",\.' i·....., t....., 5.[2] It is the petitioner's case that dlspufes afG>§eoetween the parties and in, ~ '\ ~ "...,..,' that regard, correspondence was exchangedbet~eeri 16.3.2012 to 24.7.2012.

6. It appears that the respondent Yidetaq'ett~t;d~ted 11.2.2013 terminated I 4.. • ~..~.-,.. ' •.,, ' ~ " the agreement with the petitioner. E~~£tlY'~'!';l;;'ont~ later, that is, on: ~.' ~:.:.-= "~".~.:.'~; ~.,,' '!;"~." 11.3.2013, the petitioner lodged a d~mll.?qt~l~i~~~~.~~J.7,86,56,634/-.

7. Apparently, the respondent vide communication dated 7.5.2013 accepted the, petitioner's request for cU.spute resolutid!l;and accordingly, • • f·... i - • ••,"';:x.......; • ~""",~, ~~"~'-!..k;t~.,J' tendered a panel of four names for constituti'4g ail-Arbitral Tribunal. I 7.[1] The petitioner, in response, vide its communication dated 25.5.2013, requested the: respondent to recommend alternate names on the ground that, the individua;ls suggested by the respondent did not have the requisite, qualifications':for appointment as an arbitrator. ARB.P. No. 480/201 7 Pg. 20/4

8. It appears that since the parties did not agree on any particular individual, in consonance with Clause 23.[1] and Clause 23.2.2, the disputes obtaining between the parties were referred to a Sole Conciliator.

9. It appears that even before the Conciliator, no settlement could be arrived at. this aspect was recorded by the Conciliator in the award dated 27.2.2015.:The petitioner, however, claims that it obtained information that an award had been passed only on 19.8.2015. 9.[1] Consequently, the petitioner takes:~ stand that on 7.9.2015, it chose once again to invoke the arbitration ag~eemeilt; >which is incorporated in,,'... ";'1.,,', Clause 23.[2] of the agreement obtairiing!betweeri:. ·the parties. Since then,.. J': -,<:',I' " I,,. f,·.., according to,the petitioner, while there h~ve be~n stime discussions between. '. the parties, to resolve the disputes amicably"the discussions have not led to,. any fruitful result. " r ~! 4".. ! {:.; t, _~ ~. ~,

10. The petitioner, having realized t.hai~the.Co1jsHi~ted settlement was not, • J ~:. • • ~,:.... '.' achievable, approached this Court.bY wa:y. o~the·:c~Ptio.n"ed petition...'. ";./':R*..· \~, ~ -rio" \ ",::'A~~',[1] ",.;:q'~''';;''''. ",1' ~" ".,l'';'" -or- 1......""':;..,.,:t"w_", ', •.'. t. !...-'

11. As ind,icated at the outset, despIte- 'ROtite; the respondent has not, entered appearance in the matter. ! j -.;: • '*

12. In these circumstances, the' avenh.~jits..maae ·,l)y.the' petitioner and its counsel before me have'gone unrebutted. 13, Furthenitlore, in view of the fact that despite a request made by the,, petitioner, the;respondent chose not to appoint an Arbitrator, I am inclined to allow the captioned petition. ARB.P. No.480120U Pg. 30/4

14. Accordingly, Mr. Satish K. Vij, a former Member (Engg.), Railway Board and Ex-Officio Secretary to the Government of India, is appointed as an Arbitrator in the matter..The learned Arbitrator after entering upon reference will issue notice to the respondent.

15. The learned Arbitrator will be paid his fees in terms of the Fourth Schedule appended to the 1996 Act.

16. Th~ captioned petition is disposed ofin the aforesaid terms.