National Highways Authority of India v. M/S NCC VEE (JV)

1. The present appeal has been filed under Section 37 of the Arbitration & Conciliation Act, 1996 read with Section 13 of the Commercial Courts, Commercial Division & Commercial Appellate Division of the High Courts Act, 2015 challenging the order dated 12.04.2.018 passed by the learned Single Judge of this Court by which a petition under Section 34 of the Arbitration & Conciliation Act, 1996 has been dismissed.

2. Two Arbitration Tribunals have been constituted with respect to the disputes, which have arisen between the parties herein. For the sake of convenience, we may refer to the claims pre 2010 as reference no.1 2018:DHC:3320-DB and claims post 2010 as reference no.2. The subject matter of the present appeal pertains to an order passed by the Tribunal and upheld by the Single Judge of this Court with respect to Reference No.1. Reference no.1 is pending before a Tribunal comprises of three members, one each appointed by the parties and the Presiding Arbitrator appointed by the Arbitrators. The subject matter of the petition under Section 34 of the Act filed by the appellant herein had arisen out of an order passed by the Tribunal on an application filed by the respondent seeking removal of Shri Y.P. Khurana, an Arbitrator, nominated by the appellant herein. This application was heard by the Tribunal and by a majority order, the same was allowed. A petition filed under Section 34 of the Act by the appellant was dismissed.

3. When the appeal had come up for hearing, we were informed that at least two Arbitrators appointed by the appellant had ceased to act and the third Arbitrator stands removed by the order passed. Counsel for the respondent had also submitted that although claims of more than 300 crores are pending decision, the matter has been hanging fire prior to 2010 in reference no.1 and post 2010 in reference no.2. We were also informed that Shri Y.P. Khurana is also a named Arbitrator in reference no.2 and the respondent has moved a similar application in reference no.2, in which, arguments have been heard and judgment has been reserved.

4. With a view to put a quietus to the matter pertaining to appointing an Arbitrator in place of Shri Y.P. Khurana, this Court had directed presence of the Managing Director of the respondent and a responsible officer on behalf of the appellant. Mr. Anil Kumar Kushwaha, G.M. (Tech.) & Project Director, NHAI, on behalf of the appellant and Mr. Naushad Ahmed, Managing Director on behalf of the respondent are present in Court. With the intervention of the learned counsels, who are appearing in the matter and with a view to ensure that the matter is finally laid to rest at the shortest period of time, it is agreed that Shri Y.P. Khurana would be replaced by Shri Ravindra Kumar Srivastava, the name proposed by the appellant in consultation with the officer present in Court and in consultation with other Senior Officers of the organization on telephone. The parties have also agreed that Shri Ravindra Kumar Srivastava will also replace Shri Y.P. Khurana in reference no.2 and the application pending before the Single Judge, in which, order has been reserved would be withdrawn. Parties also agree that Shri A.D. Narayana, who is the Presiding Arbitrator in reference no.2 shall replace Shri Ajit B. Pawar, Presiding Arbitrator, in reference no.1. In effect, references shall now be constituted in the following manner: Reference no.1 (Pre 2010 claims) Reference no.2 (post 2010 claims) Mr. A.D. Narayana, Presiding Arbitrator Mr. A.D. Narayana, Presiding Arbitrator Mr. V.K. Shrotriya, Claimant’s nominee Mr. V.K. Shrotriya, Claimant’s nominee Mr. Ravindra Kumar Srivastava, NHAI’s nominee Mr. Ravindra Kumar Srivastava, NHAI’s nominee

5. We are informed that in both the references, the matter is at the stage of final arguments. Both parties agree and undertake not to seek any adjournments before the Arbitrators. The Arbitrators are requested to decide the matter within a period of three months positively from today.

6. Mr. Bishnoi, learned counsel for the appellant at this stage submits that since the issue has been amicably resolved, certain observations made against Shri Y.P. Khurana, should be treated as withdrawn, as the same may have an impact on future Arbitrations where Mr. Khurana may be appointed or is an Arbitrator in current arbitrations. We make it clear that any observations made by the Arbitrators and also by the learned Single Judge would be treated as observations made with respect to the present matter and would in no way be cited as a precedent in any other matter and shall not be treated as his conduct being bias or partial.

7. With these agreed directions, the appeal is disposed of binding the parties to the stand taken in the Court.

8. Copy of the order passed today shall be brought to the notice of the Arbitrators at the earliest.

9. The application stands disposed of in view of the order passed in the appeal.

10. Dasti. G.S.SISTANI, J. SANGITA DHINGRA SEHGAL, J. MAY 18, 2018 ck/