- (1.) This application u/s. 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") has been moved for appointment of arbitrators in order to decide the dispute which has arisen between the applicants and the respondent.
(2.) The respondent Delhi Metro Rail Corporation Ltd. (in short "DMRC") is a company incorporated under the Indian Companies Act, for implementation and subsequent operation of Delhi Mass Rapid Transport System. Applicant 1 Kumagai Gumi Co. Ltd. and Applicant 4 Itochu Corporation are companies incorporated and registered under the laws of Japan. Applicant 2 Skanska International Civil Engineering AB is a company incorporated and registered under the laws of Sweden and Applicant 3 Hindustan Construction Co. Ltd. is a company incorporated and registered under the Indian Companies Act.
(3.) The respondent invited tenders for Contract MCIA, for design, construction, equipping, testing and commissioning of four underground stations, including approach tracks between Vishwa Vidyalaya to ISBT. The applicants entered into a joint venture for the purpose of participating in the bid. The tender was accepted and the Contract MCIA was awarded to them on 21-5-2001. Clause 20 of the General Conditions of Contract which forms part of the agreement entered into between the parties deals with claims, disputes, conciliation and arbitration. Relevant part of clauses 20.4 and 20.9 read as under: "20.4. For the purpose of sub-clause 20.5, a dispute shall be deemed to arise when one party serves on the other party a notice in writing (hereinafter called a 'notice of dispute') stating the nature of the dispute provided that no such notice shall be served later than 28 days after the date of issue of performance certificate by the employer's representative. * * * 20.9. If the efforts to resolve all or any of the disputes through conciliation fail, then such disputes or differences, whatsoever arising between the parties, arising out of, touching or relating to construction/manufacture, measuring operation or effect of the contract or the breach thereof shall be referred to arbitration in accordance with the following provisions: (a) Matters to be arbitrated upon shall be referred to a sole arbitrator where the total value of claims does not exceed Rs. 1.5 million. Beyond the claim limit of Rs. 1.5 million, there shall be three arbitrators. For this purpose, employer will make out a panel of engineers with the requisite qualifications and professional experience. This panel will be of serving or retired engineers of government departments or of public sector undertakings. (b) For the disputes to be decided by a sole arbitrator, a list of three engineers taken from the aforesaid panel will be sent to the contractor by the employers from which the contractor will choose one. (c) For the disputes to be decided by three arbitrators, the employer will make out a list of five engineers from the aforesaid panel. The contractor and employer shall choose one arbitrator each and the two so chosen shall choose the third arbitrator from the said list, who shall act as the presiding arbitrator. (d)-(e) * * * (f) The award of the sole arbitrator or the award by majority of three arbitrators as the case may be shall be binding on all parties.";