LexYOU ONE MAHARIA -JV THROUGH YOU ONE ENGINEERING AND CONSTRUCTION COMPANY LTD. AND ANR. versus NATIONAL HIGHWAYS AUTHORITY OF INDIA
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YOU ONE MAHARIA -N THROUGH YOU ONE ENGINEERING AND
CONSTRUCTION COMPANY LTD. AND ANR.
v.
NATIONAL HIGHWAYS AUTHORITY OF INDIA
AUGUST 21, 2007
[C.K. THAKKER, J.]
A
B
Arbitration and Conciliation Act, 1996-s.11(6) & 11(12)-Arbitration
clause contained in agreement between the parties provided that each party C
would appoint its arbitrator and two arbitrators so appointed would appoint
third arbitrator who shall act as the Presiding Arbitrator-Arbitrators
appointed by the parties failed to reach .upon a consensus on appointment
of the Third/Presiding Arbitrator-Arbitration petition filed by one party
before Supreme Court praying for appointment of a retired Judge of Supreme
C,ourt or a retired Chief Justice of a High Court as the Presiding Arbitrator- D
Maintainability of-Held, not maintainable since the arbitration clause
explicitly empowered the 'Council of1ndian Road Congress' to appoint the
Presiding Arbitrator in case arbitrators appointed by the parties failed to
appoint Presiding Arbitrator-Appointment of Arbitrators by the Chief Justice
of India Scheme, 1996-Para 2.
The Petitioners had entered into an agreement with Respondent for
execution of a project for 4-laning of portions of the National Highway 7 in
E
the State of Andhra Pradesh. The agreement contained an arbitration clause
providing for settlement of disputes between the parties by an arbitral tribunal
consisting of three arbitrators. Each party was required to appoint one F
arbitrator and the two arbitrators so appointed by the parties were to appoint
the third Arbitrator who was to act as the Presiding Arbitrator.
Disputes having arisen between the parties, both parties appointed one
arbitrator each. However, the arbitrators so appointed could not agree on
appointment of the Presiding arbitrator.
G .
In the present petition under Section 11(6) and 11(2) of the Arbitration
and Conciliation Act, 1996 read with Puagraph 2 of the Appointment of
Arbitrators by the Chief Justice of India Scheme, 1996 the Petitioners
contended that since they had chosen a. retired Chief Justice of High Court
177
H
178
SUPREME COURT REPORTS
{2007) 9 S.C.R.
A as their Arbita:ator, a Judge Senior in ,rank to hi~ viz. a retired J11dg~ of
Su pre.me Court or _a r~tir:ed Chief Justice of a High. Court should be appointed
as the Presiding Arbitrator.
Dismissing· the petition, the Court
B
HELD: The prayer of the petitioners cannot be granted. A bare reading
of the arbitration clause leaves no room for doubt that in case of failure of the
two Arbitrators appointed by the' parties to reach upon a consensus, the
Presiding Arbitrator shall be appointed by the Council of IRC (Indian Road
Congress). The clause is explicitly clear and there is ~o ambiguity. Apart
from clear language of Arbitration Clause, the point is also covered.by an
C earlier <t.ecision between the ~ame parties wher~ almost in iden~ical
circumstances, this Court was called upon to consider the provisions of the.
Act and the right to appoint Presiding Arbitrator und'er the Agreement. The
Court held that "i°t i~ the right of IRC tO appoint Presiding· Arbitrator i.n case, ·
the parties are not ad idein in appointment of Third/Presiding Arbitrator ..
D Therefore, the petitioners cannot compel the respondentto agree fo~ ~ retired
Judge of this Court or retired Chief Justice of a High Court, senior to the
arbitrator appointed by the Pe~itioners as Presiding Arbitrator.
(Paras_9, 10, 12 and IS( (181-E; 182-A, D; 1~3-F)
You one Engineering & Construction Co. Ltd. & Anr. v. NatiOnal
E Highways Authority of India, (2006) 4 SCC 372, referred to.
, .
F
G.
CIVIL ORIGINAL JURISDICTION :·Arbitration Petition No. 12 of2007.
Under Section 11(6) read with Section I I(l2) of the Arbitration and;•
Conciliation Act, 1996.
: ' ·
R.P. Bhatt, Ravikesh K. Sinha and Abhijat P. Medh for the Petitioners:
MukuI Rohtagi and V.B. Joshi for the Respondent.
The Judgment of the Court was delivered by
C.K. THAKKER, J. I. This petition is filed by tile' petitioner5 under
Section 11(6) and Section 11(12) of the Arbitration and C~nciliation Ac!, 1996
(hereinafter referred to as 'the Act') read with paragraph 2 of the Appointment
of Arbitrators by the Chief Justice of India Scheme, 1996 for appointment of
Third/Presiding Arbitrator in accordance with the Agreement/Contract Package.
H No. NS-23/ AP dated May 31, 200 I entered into between the petitioners and
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