M/S. VOESTALPINE SCHIENEN GMBH Vs. DELHI METRO RAIL CORPORATION LTD.
LAWS(SC)-2017-2-79
SUPREME COURT OF INDIA
Decided on February 10,2017

M/S. Voestalpine Schienen Gmbh Appellant
VERSUS
DELHI METRO RAIL CORPORATION LTD. Respondents





Cited Judgements :-

BVSR-KVR VS. RAIL VIKAS NIGAM LTD [LAWS(DLH)-2020-2-42] [REFERRED TO]
HIMACHAL PRADESH POWER CORPORATION LIMITED VS. HINDUSTAN CONSTRUCTION COMPANY LIMITED [LAWS(DLH)-2020-9-110] [REFERRED TO]
BHAYANA BUILDERS PVT LTD VS. ORIENTAL STRUCTURAL ENGINEERS PVT LTD [LAWS(DLH)-2018-2-435] [REFERRED TO]
PACIFIC DEVELOPMENT CORPORATION LIMITED VS. DELHI METRO RAIL CORPORATION LTD. [LAWS(DLH)-2023-1-196] [REFERRED TO]
HEIRS OF LEGAL OF SIDHRAJSINHJI PRAGRAJSINHJI VS. BENGAL CYNOSURE DEVELOPMENT PRIVATE LIMITED [LAWS(GJH)-2019-8-103] [REFERRED TO]
CG POWER AND INDUSTRIAL SOLUTIONS LTD. (FORMERLY CROMPTON GREAVES LTD.)] VS. U.P. POWER TRANSMISSION CORPORATION LTD. [LAWS(ALL)-2022-1-57] [REFERRED TO]
C AND E LTD (COMPONENTS AND EQUIPMENTS LTD) VS. GOPAL DAS BAGRI [LAWS(CAL)-2023-7-75] [REFERRED TO]
JALPA MATA HP CENTER VS. HINDUSTAN PETROLEUM CORPORATION LIMITED AND OTHERS [LAWS(HPH)-2018-10-48] [REFERRED TO]
SENBO ENGINEERING LTD. VS. UNION OF INDIA [LAWS(JHAR)-2017-7-278] [REFERRED TO]
PMP INFRATECH PVT LTD VS. WESTERN RAILWAY [LAWS(GJH)-2021-12-609] [REFERRED TO]
AFCONS INFRASTRUCTURE LIMITED VS. IRCON INTERNATIONAL LIMITED [LAWS(DLH)-2017-8-98] [REFERRED TO]
M/S. PHULAR CONSTRUCTION COMPANY PVT LTD VS. EAST CENTRAL RAILWAY [LAWS(PAT)-2023-6-26] [REFERRED TO]
PANDIT DWARKA PRASAD MISHRA, INDIAN INSTITUTE OF INFORMATION TECHNOLOGY, DESIGN AND MANUFACTURING VS. DIRECTOR GENERAL (WORKS), CPWD AND ORS. [LAWS(MPH)-2021-1-47] [REFERRED TO]
CENTRAL ORGANISATION FOR RAILWAY ELECTRIFICATION VS. ECI-SPIC-SMO-MCML (JV) A JOINT VENTURE COMPANY [LAWS(SC)-2019-12-57] [REFERRED TO]
BJCL SRINATH VS. STATE OF BIHAR [LAWS(PAT)-2021-7-166] [REFERRED TO]
PRAKASH CHAND PRADHAN SON OF LATE MANIK CHAND PRADHAN VS. UNION FO INDIA [LAWS(SIK)-2017-7-7] [REFERRED TO]
VINOD K R S/O LATE N R VS. KAROLLIL AUDITORIUM THAMMANAM, PALARIVATTOM [LAWS(KER)-2017-5-74] [REFERRED TO]
JRE INFRA PVT. LTD VS. DEENDAYAL PORT AUTHORITY [LAWS(GJH)-2023-11-35] [REFERRED TO]
WEST BENGAL HOUSING BOARD VS. ABHISEK CONSTRUCTION [LAWS(CAL)-2023-4-148] [REFERRED TO]
SMS LTD. VS. RAIL VIKAS NIGAM LIMITED [LAWS(DLH)-2020-1-148] [REFERRED TO]
LARSEN & TOUBRO LTD. VS. PUBLIC WORKS DEPARTMENT [LAWS(DLH)-2020-1-165] [REFERRED TO]
NCCL-PREMCO(JV) VS. RAIL VIKAS NIGAM LIMITED [LAWS(DLH)-2018-10-166] [REFERRED TO]
ASHIANA INFRAHOMES PVT LTD & ORS VS. ADANI POWER LTD [LAWS(DLH)-2018-5-362] [REFERRED TO]
IRB AHMEDABAD VADODARA SUPER EXPRESS TOLLWAY PRIVATE LIMITED VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA [LAWS(DLH)-2020-8-116] [REFERRED TO]
IRB AHMEDABAD VADODARA SUPER EXPRESS TOLLWAY PRIVATE LIMITED VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA [LAWS(DLH)-2020-8-116] [REFERRED TO]
GLOBAL AVIATION SERVICES PRIVATE LIMITED VS. AIRPORT AUTHORITY OF INDIA A BODY CORPORATE CONSTITUTED BY CENTRAL GOVERNMENT UNDER AIRPORT AUTHORITY ACT, (55 OF 1994) [LAWS(BOM)-2018-2-345] [REFERRED TO]
AFCONS INFRASTRUCTURE LIMITED VS. KONKAN RAILWAY CORPORATION LIMITED [LAWS(BOM)-2018-10-226] [REFERRED TO]
CENTEX (INDIA) ENGINEERS(P) LTD VS. GENERAL MANAGER, SOUTH EASTERN RAILWAY [LAWS(CAL)-2018-2-83] [REFERRED TO]
AHUJA CLASSES VS. BOTHRA CLASSES [LAWS(GJH)-2020-9-171] [REFERRED TO]
HARI INDANE GRAMIN VITERAK AND ORS. VS. U.O.I. AND ORS. [LAWS(ALL)-2020-7-154] [REFERRED TO]
HINDUSTAN STEELWORKS CONSTRUCTION LIMITED VS. UNION OF INDIA [LAWS(PAT)-2017-8-48] [REFERRED TO]
RAJKUMAR TAMOTIA VS. ALOK SHARMA [LAWS(MPH)-2024-5-93] [REFERRED TO]
M. SURESH VS. T. V. SUNDARAM IYENGAR & SONS PVT. LTD. [LAWS(MAD)-2022-11-246] [REFERRED TO]
ARAVALI POWER COMPANY PVT. LTD. VS. M/S. ERA INFRA ENGINEERING LTD. [LAWS(SC)-2017-9-54] [REFERRED TO]
SOLARIS CHEM TECH INDUSTRIES LIMITED VS. ASSISTANT EXECUTIVE ENGINEER KARNATAKA URBAN WATER SUPPLY AND DRAINAGE BOARD [LAWS(SC)-2023-10-76] [REFERRED TO]
GLOCK ASIA-PACIFIC LTD VS. UNION OF INDIA [LAWS(SC)-2023-5-101] [REFERRED TO]
REGU MAHESWARA RAO VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2021-10-21] [REFERRED TO]
APR CONSTRUCTIONS LTD VS. UNION OF INDIA REP BY CHIEF ADMINISTRATIVE OFFICER (CONST ) SOUTH WESTERN RAILWAY [LAWS(KAR)-2018-8-197] [REFERRED TO]
M/S AMBALAL DOSABHAI VS. CHAIRMAN AND MANAGING DIRECTOR [LAWS(GJH)-2017-8-246] [REFERRED TO]
PRODDATUR CABLE TV DIGI SERVICES VS. SITI CABLE NETWORK LIMITED [LAWS(DLH)-2020-1-121] [REFERRED TO]
OVERNITE EXPRESS LIMITED VS. DELHI METRO RAIL CORPORATION [LAWS(DLH)-2022-8-60] [REFERRED TO]
S.P. SINGLA CONSTRUCTIONS (P) LTD. VS. DELHI METRO RAIL CORPORATION LIMITED [LAWS(DLH)-2017-9-55] [REFERRED TO]
C& C CONSTRUCTION LTD VS. IRCON INTERNATIONAL LTD [LAWS(DLH)-2018-5-356] [REFERRED TO]
SURENDRA KUMAR CHHABDA VS. STATE OF CHHATTISGARH [LAWS(CHH)-2017-12-56] [REFERRED TO]
ASHA CONSTRUCTION VS. NTPC-SAIL POWER COMPANY PRIVATE LIMITED [LAWS(CHH)-2017-5-117] [REFERRED TO]
M/S SAHIL PROJECTS AND PLANNING PRIVATE LIMITED VS. THE EASTERN RAILWAY THROUGH CHIEF ADMINISTRATIVE [LAWS(JHAR)-2017-8-5] [REFERRED TO]
LITE BITE FOODS PVT. LTD. VS. AIRPORTS AUTHORITY OF INDIA [LAWS(BOM)-2019-12-143] [REFERRED TO]
SADHNA KUMARI VS. BIHAR STATE FOOD & CIVIL SUPPLIES CORPORATION LIMITED [LAWS(PAT)-2017-4-59] [REFERRED TO]
SITSON INDIA PVT. LTD VS. KAVERI VIBHAG SAHAKARI KHAND UDHYOG MANDALI LIMITED [LAWS(GJH)-2023-8-256] [REFERRED TO]
JV ENGINEERING ASSOCIATE VS. GENERAL MANAGER, CORE [LAWS(MAD)-2020-2-105] [REFERRED TO]
PRAKASH CHAND PRADHAN VS. UNION OF INDIA [LAWS(SIK)-2019-8-7] [REFERRED TO]
BHARAT BROADBAND NETWORK LIMITED VS. UNITED TELECOMS LIMITED [LAWS(SC)-2019-4-75] [REFERRED TO]
VICTORY OIL GRAM UDYOG ASSOCIATION VS. MANAGING DIRECTOR AND ANOTHER [LAWS(HPH)-2018-1-94] [REFERRED TO]
M/S.T. K. ENGINEERING CONSORTIUM PVT. LTD. VS. DIRECTOR (PROJECTS) RITES LTD [LAWS(DLH)-2021-3-134] [REFERRED TO]
M/S. TECHNO COMPACT BUILDERS VS. RAILTEL CORPORATION OF INDIA LIMITED [LAWS(DLH)-2024-3-99] [REFERRED TO]
U.A.N. RAJU VS. KONKAN RAILWAY CORPORATION LIMITED [LAWS(DLH)-2017-11-313] [REFERRED TO]
AFCONS INFRASTRUCTURE LIMITED VS. KONKAN RAILWAY CORPORATION LIMITED [LAWS(BOM)-2020-6-97] [REFERRED TO]
INTERNATIONAL NUT ALLIANCE LLC VS. JOHNS CASHEW COMPANY [LAWS(KER)-2021-12-18] [REFERRED TO]
NATIONAL CLUB COOPERATIVE SOCIETY LIMITED VS. MANAGING DIRECTOR [LAWS(JHAR)-2022-4-29] [REFERRED TO]
SHUBHAM GARG VS. AJAY KUMAR MAHESHWARI [LAWS(ALL)-2019-4-257] [REFERRED TO]
BUNDEL KHAND ADVERTISING ASSOCIATION AND 5 OTHERS VS. STATE OF U P AND 8 OTHERS [LAWS(ALL)-2018-3-44] [REFERRED TO]
DEVKI NANDAN STEEL WORKS AND ORS VS. HP STATE ELECTRICITY BOARD LTD AND ORS [LAWS(HPH)-2018-9-18] [REFERRED TO]
KASHMIRA SINGH VS. UNION OF INDIA [LAWS(P&H)-2021-7-246] [REFERRED TO]
HRD CORPORATION (MARCUS OIL AND CHEMICAL DIVISION) VS. GAIL (INDIA) LIMITED (FORMERLY GAS AUTHORITY OF INDIA LTD.) [LAWS(SC)-2017-8-111] [REFERRED TO]
V.K. SENTHILKUMARAN VS. SHRIRAM TRANSPORT FINANCE COMPANY LTD [LAWS(MAD)-2021-12-187] [REFERRED TO]
M/S. INTERNATIONAL NUT ALLIANCE LLC VS. M/S. JOHNS CASHEW COMPANY [LAWS(KER)-2021-12-60] [REFERRED TO]
SAHIL PROJECTS AND PLANNING PRIVATE LIMITED VS. EASTERN RAILWAY, THROUGH ITS CHIEF ADMINISTRATIVE [LAWS(JHAR)-2017-9-10] [REFERRED TO]
AFCONS INFRASTRUCTURE LTD. VS. RAIL VIKAS NIGAM LIMITED [LAWS(DLH)-2017-5-395] [REFERRED TO]
SALMA DAM JOINT VENTURE VS. WAPCOS LIMITED [LAWS(DLH)-2019-1-461] [REFERRED TO]
BHAGWAT ENTERPRISES VS. MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL [LAWS(BOM)-2023-2-214] [REFERRED TO]
BHARAT BROADBAND NETWORK LIMITED VS. UNITED TELECOMS LIMITED [LAWS(DLH)-2017-11-380] [REFERRED TO]
S.N.NAIK VS. UNION OF INDIA [LAWS(BOM)-2024-4-128] [REFERRED TO]
M/S. MEHROTRA BUILDCON PVT. LTD. VS. SOUTH EASTERN RAILWAY [LAWS(CAL)-2023-12-12] [REFERRED TO]
STEELMAN TELECOM LIMITED VS. POWER GRID CORPORATION OF INDIA LIMITED [LAWS(DLH)-2023-8-106] [REFERRED TO]
UNION OF INDIA VS. PUSHKAR PAINT INDUSTRIES [LAWS(DLH)-2023-2-31] [REFERRED TO]
TILAK RAJ, CONTRACTOR VS. CHIEF ENGINEER (MZ) AND ANOTHER [LAWS(HPH)-2018-7-47] [REFERRED TO]
M/S. RANJEET SINGH AND COMPANY VS. HP STATE ELECTRICITY BOARD LTD. AND ANOTHER [LAWS(HPH)-2018-7-146] [REFERRED TO]
MAHARASHTRA STATE ELECTRICITY TRANSMISSION CO. LTD. VS. KALPATARU POWER TRANSMISSION LTD. [LAWS(BOM)-2019-11-33] [REFERRED TO]
ITD CEMENTATION INDIA LTD. VS. KONKAN RAILWAY CORPORATION LTD. [LAWS(BOM)-2019-12-154] [REFERRED TO]
BISHAMBAR DAYAL SINSINWAR VS. GENERAL MANAGER, NORTH CENTRAL RAILWAY AND ANOTHER [LAWS(ALL)-2020-7-107] [REFERRED TO]
HEDGE FINANCE PRIVATE LIMITED VS. BIJISH JOSEPH [LAWS(KER)-2022-8-2] [REFERRED TO]
DWIVEDI & SONS VS. BHARAT PETROLEUM CORPORATION LIMITED [LAWS(PAT)-2017-8-111] [REFERRED TO]
DATA TECHNOSYS (ENGINEERS) PVT LTD VS. UNION OF INDIA AND ORS [LAWS(PAT)-2018-3-355] [REFERRED TO]
SRI HARI INDANE GRAMIN VITERAK VS. U O I THRU SECY, MINISTRY OF PETROLEUM & NATURAL GAS & ORS [LAWS(ALL)-2020-7-27] [REFERRED TO]
M/S. ASHA CONSTRUCTION VS. NTPC-SAIL POWER COMPANY PVT. LTD. & ANOTHER [LAWS(CHH)-2017-5-19] [REFERRED TO]
MS. SIMPLEX INFRASTRUCTURES LTD VS. NATIONAL HIGHWAYS AUTHORITY OF INDIA [LAWS(DLH)-2024-1-74] [REFERRED TO]
M/S. ROSHAN REAL ESTATES PVT LTD VS. PUBLIC WORK DEVELOPMENT DELHI [LAWS(DLH)-2024-4-27] [REFERRED TO]
IWORLD BUSINESS SOLUTIONS PRIVATE LIMITED VS. DELHI METRO RAIL CORPORATION LIMITED [LAWS(DLH)-2020-12-63] [REFERRED TO]
SIMPLEX INFRASTRUCTURES LTD VS. RAIL VIKAS NIGAM LIMITED [LAWS(DLH)-2018-12-246] [REFERRED TO]
HANUMAN MOTORS PVT. LTD. VS. M/S. TATA MOTORS FINANCE LTD [LAWS(BOM)-2023-3-19] [REFERRED TO]
MPD INDUSTRIES PVT LTD , INDORE (MADHYA PRADESH) VS. STEEL AUTHORITY OF INDIA LIMITED THROUGH ITS CHAIRMAN [LAWS(JHAR)-2018-1-24] [REFERRED TO]
PALLAV VIMALBHAI SHAH VS. KALPESH SUMATIBHAI SHAH [LAWS(GJH)-2017-8-206] [REFERRED TO]
JMC ATEPL JOINT VENTURE VS. BANGALORE METRO RAIL CORPORATION LIMITED [LAWS(KAR)-2021-2-87] [REFERRED TO]
BHAGWATI CONSTRUCTION VS. WESTERN RAILWAY [LAWS(GJH)-2022-2-951] [REFERRED TO]
P V JOJO S/O VAREED VS. INDIA CEMENTS CAPITAL & FINANCE LTD [LAWS(KER)-2019-1-75] [REFERRED TO]
VA TECH WABAG LTD, VS. TRAVANCORE TITANIUM PRODUCTS LTD, [LAWS(KER)-2020-9-442] [REFERRED TO]
CENTEX (INDIA) ENGINEERS (P) LIMITED VS. EXECUTIVE ENGINEER/BRL, EASTERN RAILWAY, SEALDAH [LAWS(CAL)-2024-10-1] [REFERRED TO]
JAIPUR ZILA DUGDH UTPADAK SAHKARI SANGH LIMITED VS. M/S AJAY SALES & SUPPLIERS [LAWS(SC)-2021-9-136] [REFERRED TO]
PERKINS EASTMAN ARCHITECTS DPC VS. HSCC (INDIA) LTD. [LAWS(SC)-2019-11-87] [REFERRED TO]
ELLORA PAPER MILLS LIMITED VS. STATE OF MADHYA PRADESH [LAWS(SC)-2022-1-7] [REFERRED TO]
MLR AUTO LIMITED VS. INUDSIND BANK LIMITED [LAWS(MAD)-2019-9-104] [REFERRED TO]
GURNAM SINGH VS. SACRED HEART SEN. SEC. SCHOOL [LAWS(HPH)-2022-4-65] [REFERRED TO]
CHANDER SHEKHAR VS. STATE OF HP AND ORS [LAWS(HPH)-2018-3-223] [REFERRED TO]
HSBC PI HOLDINGS (MAURITIUS) LIMITED (PREVIOUSLY NAMED HPEIF HOLDINGS VS. AVITEL POST STUDIOZ LIMITED [LAWS(BOM)-2023-4-56] [REFERRED TO]
ORISSA CONCRETE VS. UNION OF INDIA [LAWS(CHH)-2017-8-176] [REFERRED TO]
MAURAWAN INDANE SERVICE VS. U.O.I. [LAWS(ALL)-2020-7-28] [REFERRED TO]
SALMA DAM JOINT VENTURE THROUGH VS. SJV PROJECTS PVT LTD [LAWS(DLH)-2019-1-386] [REFERRED TO]
OMAXE INFRASTRUCTURE AND CONSTRUCTION LTD. VS. UNION OF INDIA & ANR. [LAWS(DLH)-2018-5-4] [REFERRED TO]
TRIBHUWAN ARORA VS. GENERAL MANAGER, EAST CENTRAL RAILWAY [LAWS(PAT)-2023-6-16] [REFERRED TO]
THE SUPREME INDUSTRIES LTD. VS. M.P. WAREHOUSING & LOGISTICS CORPORATION & ANOTHER [LAWS(MPH)-2017-8-61] [REFERRED TO]
OIL AND NATURAL GAS CORPORATION LTD VS. AFCONS GUNANUSA JV [LAWS(SC)-2022-8-110] [REFERRED TO]
M/S. AD GLOBAL VS. H.P. BUS STAND MANAGEMENT AND DEVELOPMENT AUTHORITY [LAWS(HPH)-2017-12-204] [REFERRED TO]
SANDEEP NEGI VS. STATE OF HIMACHAL PRADESH AND ANOTHER [LAWS(HPH)-2018-6-1] [REFERRED TO]
ACULIFE HEALTHCARE PRIVATE LTD. VS. THE KERALA MEDICAL SERVICE CORPORATION LTD. [LAWS(KER)-2019-1-449] [REFERRED TO]
KIRIT CONSTRUCTION COMPANY VS. MONTE CARLO LIMITED [LAWS(GJH)-2018-1-443] [REFERRED TO]
G S MALHOTRA VS. UNION OF INDIA REPRESENTED BY GENERAL MANAGER [LAWS(JHAR)-2017-9-38] [REFERRED TO]
HINDUSTAN CONSTRUCTION COMPANY LTD. VS. MAHARASHTRA STATE ROAD DEVELOPMENT CORPN.LTD. [LAWS(BOM)-2018-11-152] [REFERRED TO]
J K AGARWALA, ENGINEERS AND CONTRACTORS VS. UNION OF INDIA [LAWS(CHH)-2017-8-58] [REFERRED TO]
MICROSOFT CORPORATION VS. ZOAI FOUNDER [LAWS(DLH)-2023-7-105] [REFERRED TO]
ABHISHEK AGARWAL VS. UNION OF INDIA [LAWS(DLH)-2022-12-34] [REFERRED TO]
CONSORTIUM OF AUTOMETERS ALLIANCE LTD AND CANNY ELEVATORS CO LTD VS. CHIEF ELECTRICAL ENGINEER/PLANNING, DELHI METRO RAIL CORPORATION [LAWS(DLH)-2021-1-159] [REFERRED TO]
PROGRESSIVE INFOTECH PRIVATE LIMITED VS. IRCON INTERNATIONAL LTD. [LAWS(DLH)-2023-2-2] [REFERRED TO]
BERNARD INGENIEURE ZT - GMBH VS. IRCON INTERNATIONAL LTD [LAWS(DLH)-2018-3-193] [REFERRED TO]
ERA INFRA ENGINEERING LIMITED VS. AIRPORT AUTHORITY OF INDIA [LAWS(DLH)-2018-7-224] [REFERRED TO]
PSP PROJECTS LIMITED VS. BHIWANDI NIZAMPUR CITY MUNICIPAL CORP. [LAWS(BOM)-2023-1-98] [REFERRED TO]


JUDGEMENT

A.K.SIKRI,J. - (1.)The petitioner, which is a Company incorporated under the laws of Austria, with its registered office in that country, has its branch office in DLF City, Gurgaon, Phase-II, India as well. It is engaged, inter alia, in the business of steel production with the use of advance technology, like Rolling Technology and Heat Treatment Technology, as well as manufacturing, producing and supplying rails and related products. It claims to be a European market leader and innovation pioneer with a worldwide reputation which has played a decisive role in the development of modern railway rails. The respondent, Delhi Metro Rail Corporation Ltd. (DMRC) awarded the contract dated 12th Aug., 2013 to the petitioner for supply of rails. Certain disputes have arisen between the parties with regard to the said contract inasmuch as the petitioner feels that respondent has wrongfully withheld a sum of euro 5,31,276.00 (Euro Five Lakhs Thirty One Thousand Two Hundred and Seventy Six only) towards invoices raised for supply of last lot of 3000 MT of rails and has also illegally encashed performance bank guarantees amounting to EURO 7,83,200.00 (Euro Seven Lakhs Eighty Three Thousand Two Hundred only). Respondent has also imposed liquidated damages amounting to EURO 4,00,129.397.00 (Euro Four Hundred Thousand One Hundred Twenty Nine and Cent Three Hundred Ninety Seven Only) and invoked price variation clause to claim a deposit of EURO 4,87,830.00 (Euro Four Lakhs Eighty Seven Thousand Eight Hundred Thirty). Not satisfied with the performance of the petitioner, the respondent has suspended the business dealings with the petitioner for the period of six months. The petitioner feels aggrieved by all the aforesaid actions and wants its claims to be adjudicated upon by an Arbitral Tribunal, having regard to the arbitration agreement between the parties as contained in Clause 9.2 of General Conditions of Contract (GCC) read with Clause 9.2 of Special Conditions of Contract (SCC).
(2.)It may be pointed out, at the outset, that arbitration agreement between the parties, as contained in the aforesaid clause of the contract is not in dispute. It may also be pointed out that Clause 9.2(A) of the SCC prescribes a particular procedure for constitution of the Arbitral Tribunal which, inter alia, stipulates that the respondent shall forward names of five persons from the panel maintained by the respondent and the petitioner will have to choose his nominee arbitrator from the said panel. As per the events mentioned in detail hereinafter, the respondent had, in fact, furnished the names of five such persons to the petitioner with a request to nominate its arbitrator from the said panel. However, it is not acceptable to the petitioner as the petitioner feels that the panel prepared by the respondent consists of serving or retired engineers either of respondent or of Government Department or Public Sector Undertakings who do not qualify as independent arbitrators. According to the petitioner, with the amendment of Sec. 12 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') such a panel, by Amendment Act, 2015, as prepared by the respondent, has lost its validity, as it is contrary to the amended provisions of Sec. 12 of the Act. For this reason, the petitioner has preferred the instant petition under Section 11(6) read with Sec. 11(8) of the Act for appointment of sole arbitrator/arbitral tribunal under Clause 9.2 of GCC read with Clause 9.2 of SCC of the Contract dated Aug. 12, 2013.
(3.)With the aforesaid preliminary introduction reflecting the nature of these proceedings, we may take note of the relevant and material facts in some detail. Around Jan., 2013, the respondent had floated a tender for the procurement of 8000 Metric Tons (MT) "Head Hardened Rails of certain specifications for Delhi Metro, Phase-III projects and invited bids from the eligible bidders. The petitioner was one such bidder whose bid was ultimately accepted after tender evaluation process undertaken by the respondent. It resulted in the signing of contract agreement dated Aug. 12, 2013 between the parties for the supply of the aforesaid material. As per the petitioner, it has duly delivered the rails in three lots of 3000MT, 3000MT and 2000MT rails on Jan. 13, 2014, Jan. 19, 2014 and Aug. 03, 2014 respectively at sea port at Mumbai, which delivery, according to the petitioner, was well within the agreed time limits. However, after the delivery of the aforesaid rails at Mumbai, inland transport thereof from Mumbai to Respondent's depots at Delhi was delayed due to various reasons. As per the petitioner, these reasons are not attributed to it and it cannot be faulted for the same. However, the respondent treated it as default on the part of the petitioner and imposed liquidated damages vide its letter dated Sept. 21, 2015. The respondent also called upon the petitioner to submit its final bill so that the liquidated damages could be set off against the said bill. This was the starting point of dispute between the parties, as the petitioner refuted the allegations of the respondent and questioned the imposition of liquidated damages as well as calculations thereof. Correspondence ensued and exchanged between the parties but it may not be necessary to state the same in detail here as that would be the subject matter of adjudication before the arbitral tribunal. Suffice it to state that respondents also encashed the bank guarantee and raised claims against the petitioner as balance amount due from the petitioner. On the other hand, the petitioner states that it is the respondent which has to pay substantial amounts to the petitioner and a glimpse of the claims of the petitioner has already been indicated above.


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