Saumitra Dayal Singh, J. - (1.) Re: Civil Misc. Delay Condonation Application No. 1 of 2019 & Re: Civil Misc. Review Application No. 2 of 2019. 1. Heard Sri Girish Chand Sinha and Sri Mukesh Kumar Singh, learned counsel for the applicant in review application and Sri Anurag Khanna, learned Senior Advocate assisted by Sri Ronak Chaturvedi, learned counsel for the respondent-claimant.
(2.) The present review application has been filed by the Madhyanchal Vidyut Vitran Nigam Ltd. (herein referred to as the 'opposite party') being opposite party no.1 in Arbitration and Conciliation Application U/S 11(4) No. 5 of 2019. For ready reference, the relevant part of the order dated 08.05.2019, is quoted herein: "Heard Sri Anurag Khanna, learned Senior Counsel assisted by Sri Ronak Chaturvedi and Sri Shivank Diddi, counsel for the applicant and Sri Abhishek Srivastava, learned Chief Standing Counsel/Special Counsel and Sri Mayank Singh, learned counsel for the respondents. This application is field under Section 11(4) of the Arbitration and Conciliation Act, 1996 by which the applicant has prayed for appointment of sole Arbitrator to resolve the dispute. The applicant is a company, indulged in manufacturing rendering services in the sector of electricity related to component, supply and distribution. The applicant company has entered into an agreement with the respondents Madhyanchal Vidyut Vitran Nigam Limited for supply of certain goods and related services viz. Implementation. The said agreement executed in between the applicant and respondent no.1 on 25th day of August, 2014. The said agreement dated 25th August, 2014 provides the special conditions of contract as well as general conditions of contract. The said agreement further provides as follows:- "IN WITNESS whereof the parties hereto have caused this Agreement to be executed in accordance with the laws applicable in exclusive jurisdiction of the High Court Of Judicature in the state of Uttar Pradesh, India and all courts subordinate to its exclusive Jurisdiction on the 25th August 2014 indicated above." Clause GCC 7.2 of the said agreement provides as follows:- "The formal mechanism for the resolution of disputes shall be: If the parties fail to resolve such a dispute or difference by mutual consultation within twenty-eight (28) days form the commencement of such dispute and difference, either party may require that the dispute be referred for resolution to the formal mechanisms, described below (The date of commencement of the dispute shall be taken from the date when this clause reference is quoted by either party in a formal communication clearly mentioning existence of dispute or as mutually agreed): a. The mechanism for resolution of disputes for bidders shall be in accordance with the Indian Arbitration and Conciliation Act of 1996. The Arbitral Tribunal shall consist of 3 (three) Arbitrators. Each Party shall agree and nominate a third Presiding Arbitrator. b. The Arbitrators shall necessarily be retired High Court Judges and the umpire shall be a retired Chief Justice. c. The place for arbitration shall be State of Uttar Pradesh." Learned counsel for the respondent-Nigam has raised the preliminary objection about the maintainability of the instant application. Learned counsel for the respondents has submitted that the conditions so as stipulated in Clause GCC 7.2 provides to resolve the dispute or the difference by mutual consultation within 28 days from the commencement of such dispute and difference. Learned counsel for the respondent therefore submits that the applicant has not approached the Nigam as such has approached the U.P. Power Corporation Ltd. Lucknow who has nothing to do with the dispute or difference arose between the parties. Per contra, learned counsel for the applicant has placed reliance on a document/letter dated 23rd August, 2018 by which the applicant has addressed the Executive Engineer, Madhayanchal Vidyut Vitran Nigam Limited, office of the Managing Director, 4A, Gokhale Marg, Lucknow. 'Subject' so as mentioned in the said letter clearly indicates that the letter has been issued by the applicant for settlement of claims. Admittedly the instant application has been filed by the applicant after expiry of the period so as indicated (28 days) in January, 2019. Having heard the learned counsel for the parties, though no observation is required to be made on the merits of the issue, it cannot be disputed, at present, there exists a dispute between the parties, and that such dispute arises under the written agreement entered into between them, and also there exists an arbitration clause for resolution of such dispute. Further, the parties have not been able to appoint an arbitrator, of their own. In view of above and as agreed in between the counsels representing the respective parties, this Court has no option but to appoint ............ List on 30th May, 2019."
(3.) At the outset, Sri Khanna, learned Senior Advocate appearing for M/s Siemens Limited (herein referred to as the 'claimant'), has raised a preliminary objection as to the maintainability of the review application. It is his submission that the application is not maintainable in law. The Arbitration Act being a complete code, there is no inherent or other power of review. No such application may be entertained in absence of a specific provision. Second, it has been submitted that in any case, the order dated 08.05.2019 being a consented order, no application for review would lie against the same. Third, he has also objected to the delay in filing the present review application. In view of the preliminary objections raised, it is considered desirable that the same may be first dealt with before proceeding to hear the substantive grounds of review.;