- (1.) This is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (in short the Act) for the appointment of an arbitrator.
(2.) The parties had entered into a Concession Agreement dated 08.05.2009 for the development of a Bus Terminal-cum-Commercial Complex on Design, Build, Operate and Transfer (D.B.O.T) Basis at Patiala. The agreement is admitted. Clause 27.3 thereof reads as under:- "27.3 Arbitration or Adjudication a. In the event that the parties are unable to resolve the dispute through direct discussion under Article 27.2, the parties shall submit the dispute for adjudication by the Punjab Infrastructure Regulatory Authority constituted under the Punjab Infrastructure (Development and Regulation) Act, 2002. b. However, in the event that the Punjab Infrastructure Regulatory Authority has not been appointed at the time of the dispute, the parties shall submit the dispute for arbitration in accordance with the Arbitration and Conciliation Act, 1996. There shall be a board of 3 (three) arbitrators of whom one shall be jointly appointed by Concessioning Authority and PIDB, one shall be appointed by Concessionaire and the third shall be appointed by the two arbitrators appointed as aforesaid. c. The arbitrators shall make a reasoned award and any award made pursuant to this Article 27.3 shall be final and binding on the parties as from the date on which it is made, and the concessionaire and the concessioning authority agree to undertake to carry out such award without delay. d. The arbitration proceedings shall be conducted in the English language and in Chandigarh only. e. The cost incurred on the process of arbitration including inter alia the fees of the arbitral tribunal and the cost of the proceedings shall be borne by the parties in equal proportions. Each party shall bear its own legal fees incurred as a result of any dispute under this Article 27."
(3.) Disputes and differences have admittedly arisen between the parties. The petitioner had filed an application under Section 9 of the Act which was dismissed on the ground that the Punjab Infrastructure Regulatory Authority (in short PIRA) had been constituted and, therefore, the application was not maintainable. On 21.09.2010, respondent No. 1 terminated the agreement. In October, 2010, the petitioner invoked the jurisdiction of PIRA and filed a statement of claim. Written statements were filed by respondents No. 1 and 2 who were parties to the agreement. FAO-5581-2010 filed by the petitioner against the order dated 30.08.2010 dismissing the application under Section 9 of the Act was disposed of by recording the statement on behalf of the respondents that the bank guarantee would not be invoked till the decision by PIRA. Interim orders/directions had been passed by PIRA. Contempt proceedings adopted by the respondents were disposed of.;