M/S GLOCK ASIA-PACIFIC LTD. versus UNION OF INDIA

Citation: [2023] 6 S.C.R. 717 · Decided: 19-05-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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   [2023] 6 S.C.R. 717
717
M/S GLOCK ASIA-PACIFIC LTD.
v.
UNION OF INDIA
(Arbitration Petition No. 51 of 2022)
MAY 19, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
PAMIDIGHANTAM SRI NARASIMHA AND
J. B. PARDIWALA, JJ.]
Arbitration and Conciliation Act, 1996 – ss.11(6), 12(5) –
Ministry of Home Affairs floated tender – Applicant’s bid was
accepted as per the terms and conditions of the tender which
provided for arbitration clause which enabled the Secretary,
Ministry of Home Affairs to appoint an officer in the Ministry of
Law as the arbitrator – Applicant invoking arbitration, nominated
a retired Judge of the High Court as the Sole Arbitrator which as
per the respondent was contrary to the Conditions of Tender –
Application filed u/s.11(6) before Supreme Court, held:The
arbitration clause in the present case enables a serving employee
of the Union of India, a party to the contract, to nominate a serving
employee of the Union of India as the Sole Arbitrator – Such
arbitration clause clearly falls within the expressly ineligible category
provided in Paragraph 1 of Schedule VII, read with s.12(5) of the
Act – As the grounds of challenge to the appointment of an arbitrator
u/s.12(5) of the Act operate notwithstanding any prior agreement
to the contrary, the appointment of an officer of the Ministry of
Law and Justice as an arbitrator cannot be given effect to – There
is no immunity arising out of Article 299, to support the contention
that for contracts expressed to be made by the President of India,
the ineligibility of appointment as an arbitrator as contemplated
u/s.12(5) of the Act, read with Schedule VII, will be inapplicable –
Application u/s.11(6) allowed – Constitution of India–Article 299.
Constitution of India– Article 299 – Purpose and object of –
Discussed–Arbitration and Conciliation Act, 1996.
Voestalpine  Schienen GmbH v. DMRC (2017) 4 SCC
665 : [2017] 1 SCR 798 – distinguished.
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SUPREME COURT REPORTS
[2023] 6 S.C.R.
Central Organisation  for Railway Electrification v.
M/s ECI-SPIC-SMO-MCML (JV) A Joint Venture
Company (2020) 14 SCC 712 : [2019] 16 SCR 1234 –
held inapplicable.
Perkins Eastman Architects DPC and Another v. HSCC
(India) Ltd.(2020) 20 SCC 760; Chatturbhuj Vithaldas
Jasani v. Moreshwar Parashram & Ors [1954] SCR
817 – relied on.
Indian Oil Corporation Ltd. and ors. v. Raja Transport
Pvt. Ltd. (2009) 8 SCC 520 : [2009] 13 SCR 510; K. P.
Chowdhry v. State of Madhya Pradesh. And Others
[1966] 3 SCR 919; Bhikraj Jaipuria v. Union of India
[1962] 2 SCR 880; Mulamchand v. State of Madhya
Pradesh (1968) 3 SCR 214; State of Assam and Ors. v.
Shri Kanak Chandra Dutta, [1967] 1 SCR 679; Union
of India v. M/s Tantia Constructions Ltd SLP (C) No.
12670/2020; JWS Steel Ltd v. Southwestern Railways
and Anr. SLP (C) No. 9462/2022– referred to.
Case Law Reference
(2020) 20 SCC 760
relied on
para 6
[2009] 13 SCR 510
referred to
para 7
[2019] 16 SCR 1234
held inapplicable
para 7
[1954] SCR 817
relied on
para 11
[1966] 3 SCR 919
referred to
para 12
[1962] 2 SCR 880
referred to
para 12
[1967] 1 SCR 679
referred to
para 15
[2017] 1 SCR 798
distinguished
para 20
CIVIL ORIGINAL JURISDICTION :  Arbitration Petition No.51
of 2022.
Appointment of Arbitrator u/s 11(6) of Arbitration & Conciliation
Act, 1996, in pursuance of Clause 24 of the General Conditions of Contract
applicable to Contracts placed by the Central Purchase Organisation of
the Government of India (Now Under Department of Commerce) Form
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No. D.G.S. & D.68 (Revised) executed between Petitioner and
Respondent]
Ramakrishnan Viraraghavan, Sr. Adv., Shyam D. Nandan,
Siddharth Bambha, Ankit Sahni, K. Krishna Kumar, Mrs. Kritika Sahni,
Ms. Sucharu Garg, Advs. for the Petitioner.
Mrs. Aishwarya Bhati, A.S.G., Rajat Nair, Ms. Deepabali Dutta,
Sourav Roy, Ms. Shivika Mehra, Ms. Manisha Chava, Nithin Pavuluri,
Arvind Kumar Sharma, Advs. for the Respondent.
The Judgment of the Court was delivered by
PAMIDIGHANTAM SRI NARASIMHA, J.
1. This is an application under Section 11(6) of the Arbitration and
Conciliation Act, 19961 for the appointment of a Sole Arbitrator by Glock
Asia-Pacific Ltd.2
2. Facts: The Ministry of Home Affairs (Procurement Division)3
floated a single party tender on 02.02.2011 for supply of 31,756 Glock
Pistols. The bid was confirmed in favour of the applicant and a Tender
of Acceptance was issued by the respondent on 31.03.2011. Clause 64
of the Tender of Acceptance, required the Petitioner to
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