- (1.) This is an application under Section 11 of the Arbitration and Conciliation Act, 1996.
(2.) Before proceeding with the merits of the matter it is necessary to mention that in the relief clause cancellation of appointment/ nomination of Shri Niranjan Kumar- opposite party no. 3 as Arbitrator had also been sought. Realizing the mistake, as, such a relief could not be sought under Section 11, although the other part of the relief was admissible, an application for amendment of the relief clause was filed which was objected by the opposite parties on the ground that it should not be allowed at such a belated stage. But, considering the nature of the proceedings and the technicality involved which does not materially affect the substantive disposal of the application for appointment of an Arbitrator, the application for amendment is allowed. As, it does not affect the merits, therefore, no fresh response is called for consequent to the amendment being allowed which is of a technical nature as the words ''cancel the appointment/ nomination of Shri Niranjan Kumar- opposite party no. 3' would stand deleted and the words ''appoint under Section 11(6) of the Arbitration and Conciliation Act, 1996' be substituted in its place and the words ''be appointed' as mentioned in the application, would be deleted.
(3.) The application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ''the Act, 1996') was filed on 08.11.2012. The agreement and the arbitration clause contained therein is not in dispute. As per the arbitration clause any dispute arising out of or in connection with the agreement shall be referred to the sole Arbitration of the Managing Director or his nominee not below the rank of General Manager whose decision shall be binding both on the Contractor and the U.P.S.R.T.C. subject to the provisions of the Act, 1996. A dispute arose between the parties on account of which a notice was given by the applicant on 29.06.2012 to the opposite parties no. 1 and 2 for appointment of an Arbitrator. The opposite party no.1- the Managing Direction, U.P.S.R.T.C., Lucknow is the party to the agreement with the applicant, whereas, the opposite party no. 2 is not a party thereto. In fact the opposite party no. 2 is another Company in respect of which the work mentioned in the agreement was to be performed. In response to the aforesaid notice the opposite party no. 2- the Managing Director, Lucknow City Transport Services Limited is said to have intimated the applicant about the appointment of Shri Niranjan Kumar, Chief General Manager (Technical), U.P.S.R.T.C. as an Arbitrator vide his letter dated 13.07.2012, a copy of the said intimation is annexed as Annexure No. 4 to the application. As the intimation was not by the Managing Director, U.P.S.R.T.C. with whom the agreement had been entered by the applicant, therefore, vide letter dated 20.07.2012 the applicant informed the opposite party no. 2 that copy of letter of M.D., U.P.S.R.T.C. i.e. opposite party no. 1 had not been received nor made available to it and in fact such communication should have come from the opposite party no. 1. A request for a copy of the said order was also made. According to the applicant the alleged order of the M.D., U.P.S.R.T.C. dated 13.07.2012 appointing an Arbitrator was never delivered to the applicant accordingly this application was filed on 08.11.2012 specifically disclosing the factum of receipt of letter dated 13.07.2012 of the opposite party no. 2 and the non receipt of any such order of the opposite party no. 1 appointing an Arbitrator. This fact is mentioned in Para 18 of the application. The opposite parties filed counter affidavit and supplementary counter affidavit stating the intimation of appointment of the Arbitrator vide letter of the opposite party no. 2- The Managing Director, Lucknow City Transport Services Limited dated 13.07.2012 but no such assertion was made in the said counter affidavits that in fact the order of the Managing Director, U.P.S.R.T.C. dated 13.07.2012 was also communicated to the applicant albeit subsequently vide another letter dated 06.08.2012 of the opposite party no. 2. It is only vide affidavit dated 07.02.2019 filed after almost more than seven years that a document numbered as SCA-1 dated 13.07.2012 signed by the Managing Director, Lucknow City Transport Services Limited, Lucknow was annexed, along with its annexure an order of the M.D., U.P.S.R.T.C. dated 13.07.2012, asserting that the appointment of the Arbitrator was by the M.D., U.P.S.R.T.C. The letter dated 13.07.2012 signed by the M.D., Lucknow City Transport Services Limited, Lucknow in part is the same as was sent to the applicant, a copy of which is annexed as Annexure No. 4 to the application but the said letter contained in Annexure SCA-1 to the supplementary counter affidavit itself says that in the original document certain portions of it were not there by using the words ''ewy izfr ij ugha'. It is inexplicable as to why these recitals of endorsement of copies did not exist on the original which was sent to the applicant. Furthermore, the letter contained in Annexure SCA-1 does not refer to any enclosures, yet the order of the M.D., U.P.S.R.T.C. dated 13.07.2012 which does not bear any letter number or reference but appears to have been passed on a sheet of paper, has been annexed with it for the first time i.e. with the affidavit dated 07.02.2019. The said order is no doubt on the record of the file of U.P.S.R.T.C. which has been placed before the Court but it is intriguing as to why it was not filed earlier and why the copy of the letter dated 13.07.2012 is not the same as that of the original.;