NAITHANI INTERNATIONAL Vs. OIL AND NATURAL GAS COMMISSION
HIGH COURT OF UTTARAKHAND
OIL AND NATURAL GAS COMMISSION
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BARIN GHOSH, J. -
(1.) IT appears that in respect of a works contract or in connection
therewith a bank guarantee was furnished by the applicant in favour of
the respondent. The respondent purported to take steps to invoke the said
guarantee and that resulted in filing of an application under Section 9
of the Arbitration and Conciliation Act, 1996, whereon many orders have
been passed. In the meantime, the bank guarantee was in fact invoked by
the respondent, but the bank refused to pay the amount of the bank
guarantee to the respondent. A writ petition was filed challenging the
said action on the part of the bank, which writ petition having been
dismissed, an appeal, against the order of dismissal of the writ
petition, is pending in this Court. In the circumstances, it appears that
the claim, if any, of the respondent has not crystallized and, as such,
respondent, despite being called upon to nominate, has not nominated its
Arbitrator in terms of the arbitration agreement though the applicant
nominated its arbitrator as far back as on 24th September, 2011. The said
action on the part of the respondent has compelled the applicant to
approach this Court.
(2.) I , accordingly, dispose of this arbitration application by appointing Mr. V.K. Gupta, retired Chief Justice of this Court as
Arbitrator to adjudicate upon the disputes raised by the applicant
resulting in a claim of Rs. 26,09,56,608/ - plus interest thereon. The
counter claim, if any, of the respondent is not specifically referred to
the said Arbitrator at this stage.
(3.) FOR adjudicating the aforementioned claim of the applicant, the Arbitrator shall be entitled to a gross remuneration of Rs. 13 lacs
to be paid half and half by the parties hereto. Fifty per cent thereof
shall be paid at the commencement of the arbitration proceeding and the
remaining fifty per cent at the close of the arbitration, i.e.
immediately before the award is made. In the event for the fault on the
part of the Arbitrator, arbitration proceedings can not be closed by
making and publishing an award, Arbitrator shall be obliged to refund the
advance remuneration to be paid to him.
It shall be open to the respondent to place before the Arbitrator its counter claim. In the event such counter claim is placed,
applicant shall not be entitled to raise any objection as regards
adjudication thereof by the Arbitrator. 0.5 per cent of such claim shall
be the additional remuneration of the Arbitrator to be paid in the same
manner as indicated above.;
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