Afcons Infrastructure Limited v. Konkan Railway Corporation Limited, June 2, 2020. [i]
Facts of the case:
The petitioner and respondent entered into a contract on 12th December 2005 for the construction of the Katra-Laone, section of the Udhampur-Shrinagar-Baramulla Rail Link Project. The dispute between the parties arose because of a wrongful deduction of payment made by the respondent to the petitioner.
The contract entered by the parties had an arbitration clause, and according to that arbitration clause, the arbitral tribunal must consist of 3 gazetted officers. These officers must be prepared by the respondent. The power to appoint the rest of the arbitrators other than the three, the power is vested with the Respondent.
The petitioner first filed an application of arbitration and conciliation act 1996 under section 9 of the acct before the district court. The petitioner then applied section 11(3) (4) and section (6) before the High court of Jammu and Kashmir according to the Jammu and Kashmir Arbitration and Conciliation Act, 1997. This application was filed to appoint an arbitrator.
By invoking the arbitration clause again, the petitioner vides the letter which was dated 2nd July 2018 and alleged that there was a failure from the side of the respondent to follow the prescribed procedure for appointing arbitrators and therefore section 11 (3) of the arbitration and conciliation act 1996 will govern in the appointment of the arbitral tribunal. The petitioner then nominates Mr. R.G. Kulkarni as a nominee arbitrator and asked the respondent to nominate their arbitrator within a period of 30 days.
On July 11th, 2018, the respondent vides the letter. The petitioner also joined the issue on 3rd August 2018 asserting, inter-alia, that the arbitration contained in the letter was fresh and unrelated to the one pending in the High court of Jammu and Kashmir. The respondent claimed that the arbitral tribunal was formed by following the terms and conditions of the contract and responded rejected the petitioner’s nominee. The petitioner later files a petition under Section 11(6) of the arbitration and conciliation act 1996.
Issue of the case:
The issue of the case was whether or not the court had jurisdiction to decide and entertain a petition under section 11 regarding the appointment of arbitrators.
The decision of the court:
The High court of Bombay held that the recognized the jurisdiction mentioned under Section 42 of the Arbitration and conciliation Act, 1996 in order to entertain any application in respect of an arbitration agreement under Part I of the act, once such an application is made to a court, by any other court other than the court to which such application is first made, does not apply to the applications like the application for appointment of an arbitrator under Section 11 of the Arbitration Act, 1996 or the application to the judicial authority under Section 8 of the Arbitration and conciliation Act, 1996.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.