Vipul Ganda is an Independent Litigation Counsel with over 14 years of experience and a proven track record in Litigation and Dispute Resolution.
Minesh Chopra Versus Delhi Metro Rail Corporation
Court / Forum : Delhi High Court Citation : O.M.P. (T) (COMM.) 32/2021 Coram : Justice C Hari Shankar Subject : Section 14 and 15 of the Arbitration & Conciliation Act, 1996 Date of Decision : 2021-03-23
On July 8, 2014, the petitioner was awarded the tender for operating the parking site at the Patel Chowk Metro Station. The Petitioner was required to pay a monthly license fee of Rs. 5,54,000/-.
Prior to expiry of the initial term of the license agreement on July 15, 2017, the Respondent requested the Petitioner to continue running the parking sites till a new contractor would be appointed.
The Petitioner submitted that the Respondent defaulted in taking possession of the aforesaid parking sites from the petitioner and, rather, vide letter dated April 18, 2018, enhanced the monthly license fees and parking charges, in violation of the license agreement. The Petitioner protested against this action of the Respondent and reiterated its request to the Respondent to take over the parking site.
The respondent failed to take possession of the parking sites and, instead, appointed, vide communication dated July 19, 2019, one Mr. S. Jethwani as the sole arbitrator to arbitrate on the disputes between the Petitioner and the Respondent. Consequent to the demise of the said learned Arbitrator, the Respondent, without consent of the petitioner, appointed one Mr. Mahesh Kumar Gupta as the substitute arbitrator in place of Mr. Jethwani.
The Petitioner filed the present petition, under Section 14 and 15 of the Arbitration & Conciliation Act, 1996 seeking termination of the mandate of the learned arbitrator, presently arbitrating on the dispute between the petitioner and the respondent, and appointment of a substitute arbitrator in his place.
The Respondent did not oppose the prayer for declaration that the mandate of Mr. Mahesh Kumar Gupta, be terminated, but submitted that the Respondent DMRC had a panel of arbitrators, from which the Petitioner could opt for an arbitrator of its choice.
The Petitioner opposed this request and, instead, requested court to appoint the substitute arbitrator.
Whether a substitute arbitrator can be appointed from the panel of arbitrators of the Respondent?
The Supreme Court while relying upon the judgement by the Hon’ble Supreme Court in Union of India v. Premco-DKSPL (JV) [(2016) 14 SCC 651], held that since the arbitration clause does not provide for the Respondent submitting a panel of proposed arbitrators, out of which the petitioner could choose one, the Petitioner was not bound to choose arbitrator from such panel.
Therefore, it was not open to a party which had its unilateral appointment of the sole arbitrator set aside by the Court, to suggest that the substitute arbitrator should be chosen from amongst a panel maintained by it.
The Hon’ble High Court in view of the aforesaid reasons and judicial pronouncements, allowed the petition, under Section 14 and 15 of the Arbitration & Conciliation Act, 1996.
Vipul Ganda is a Delhi based Advocate practicing largely at the Delhi High Court. His practice focus is Dispute Resolution and Litigation and his practice areas include Arbitration, Commercial, Civil, Constitutional, Corporate and Criminal Litigation.