Navin Chawla, J. - (1.) This petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') has been filed by the petitioner praying for the following reliefs: "a. Declare that the Respondent No 1 has failed to act in terms of the agreed procedure between the parties as regards the constitution of the arbitral tribunal, and has as such forfeited its right to nominate an arbitrator and consequently appoint an arbitrator on its behalf as also a presiding (third) arbitrator; b. Declare that the Respondent No 2 has failed to perform the functions in terms of the ICA Rules of Domestic Arbitration and that the ICA Rules of Domestic Arbitration are no longer applicable to the disputes between the parties; c. Direct the Respondent No 2 to refund the remaining amounts paid by the Petitioner to the Respondent No 2 amounting to about Rs 10,48,500; d. Declare that the arbitration between the Petitioner and the Respondent No.1 is required to be conducted as per the default statutory procedure under the Arbitration and Conciliation Act, 1996."
(2.) The disputes between the parties have arisen in relation to Contract No. DGM/PCC/TK/2010/316 executed between the petitioner and the respondent no.1 on 14.07.2010 relating to the construction of Flyover at three locations and Road Network (PKG.111-01) at Bhilai Steel Plant.
(3.) Article 9 of the Contract contains the Arbitration Clause and is reproduced hereinunder: "Article 9 Arbitration (Reference GCC Clause 6) 9.1 Conciliation and Arbitration Any disputes, differences, whatsoever, arising between the parties out of or relating to the construction, meaning, scope, operation or effect of this Contract shall be settled between the Employer and the Contractor amicably. If however, the Employer and the Contractor are not able to resolve their disputes/differences amicably as aforesaid the said disputes/differences shall be settled by Conciliation, failing which, through Arbitration. Conciliation shall be resorted to prior to invoking Arbitration. The Arbitration Clause is to be invoked by the parties to the Contract only on failure of conciliation proceedings to amicably settle the disputes. The arbitration shall be governed in accordance with The Arbitration and Conciliation Act 1996 (hereinafter referred to as the "Act") of India. The language of Arbitration shall be English. 9.2 Subject to the stipulations made hereinabove, Arbitration shall be conducted as per forum specified below: Arbitration of contracts, with Indian parties, where contract value is more than India Rs. 5 crore and the contracts with foreign parties for value of more than Indian Rs. 5 crore and up to Indian Rs. 20 crore shall be governed by the Rules of Indian Council of Arbitration (ICA)/ "SCOPE Forum of Conciliation and Arbitration" (SCFA) as agreed by the party. The venue shall be New Delhi. During the pendency of the Conciliation or Arbitration proceedings both the parties (i.e. the Contractor and the Employer) shall continue to perform their contractual obligations. The arbitral tribunal shall give reasons for its award. The tribunal shall apportion the cost of arbitration between the parties, the award rendered in any arbitration hereunder shall be final and binding upon the parties. The parties agree that neither party shall have any right to commence or maintain any suit or legal proceeding concerning any dispute under this agreement until the dispute has been determined in accordance with the arbitration proceeding provided for herein and then only to enforce or facilitate the execution of an award rendered in such arbitration. Unless otherwise mentioned, the Arbitration shall be held at Durg, Chhattisgarh, India. The court of Durg, Chhattisgarh, India (with exclusion of all other courts) shall have exclusive jurisdiction over all matter of dispute.";