Ashis Kumar Chakraborty,J. - (1.) The Court : In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, as amended by Act No. 3 of 2016 (in short, "the Act of 1996") the petitioner has prayed for appointment of an independent arbitrator by this Court to adjudicate the claims raised against it by the respondent relating to the agreement dated December 31, 2009 (hereinafter referred to as "the said agreement").
(2.) The arbitration agreement between the parties contain in 10.1 of the said agreement contemplats that in case the claim of any party against the other is less than Rs. 5 crore the same shall be referred to an arbitrator to be appointed by the Managing Director of the concerned Steel Plant of the respondent. In this case the concerned steel plant is the Durgapur Alloy Steel Plant of the respondent. The ground urged by the petitioner in this application is that in the instant case instead of the Managing Director of the Durgapur Alloy Steel Plant of the respondent, the Chief Executive Officer of the said steel plant has appointed the arbitrator to adjudicate the claim of the present respondent. The second ground urged by the petitioner is that the in view of the provisions incorporated by sub-section (5) in Section 12 of the Act of 1996, as well as the Fifth and the Sixth schedule to the said Act, the Managing Director of the Durgapur Alloy Steel Plant being an employ of the respondent, cannot appoint any arbitrator. In the regard, the petitioner relied on the petitioner decision by the Supreme Court in the case of TRF LTD.-VS-ENERGO ENGINEERING PROJECTS LTD., reported in (2017) 8 SCC 377 .
(3.) The respondent, however, contended that presently the post of Managing Director of the Durgapur Alloy Steel Plant has been redesignated as the Chief Executive Officer. Further, it is the Chief Executive Officer of the Durgapur Steel Plant who is also discharging the functions of the Chief Executive Officer of the Durgapur Alloy Steel Plant. Thus, according to the respondent, there is no merit in the contention of the petitioner that there is a defect in the appointment the arbitrator by the Chief Executive Officer of the Durgapur Alloy Steel Plant to adjudicate the claims of the respondent.;