M/S Shivendra Kumar, v. The Union Of India, Through The General Manager, East Central Railway, Hajipur

IN THE HIGH COURT OF JUDICATURE AT PATNA

REQUEST CASE No.42 of 2022 ====================================================== M/s Shivendra Kumar, through its Proprietor Sri Shivenra Kumar, Male, aged about 49 years, Resident of Village - Baro, Bishanpur Tola, P.O. - Barauni, District - Begusarai.

... ... Petitioner/s

Versus

1.

The Union of India, through the General Manager, East Central Railway, Hajipur At and P.O. - Hajipur, District - Vaishali. 2.

The Chief Mechanical Engineer, East Central Railway, Hajipur, At and P.O. - Hajipur, District - Vaishali.

3.

The Senior Divisional Mechanical Engineer, East Central Railway, Sonpur, At and P.O. - Sonpur, District - Saran.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Jitendra Kumar, Advocate For the Respondent/s :

Mr. Kumar Priya Ranjan, CGC.

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL JUDGMENT Date : 17-08-2022 This application has been moved seeking appointment of an Arbitrator invoking the powers of this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act').

Petitioner and the respondents entered into a written agreement dated 16.11.2015. The said agreement contains an arbitration clause- 64 (Annexure-P/1, Page 9) for settlement of disputes, which the petitioner invoked, vide communication dated 30.10.2021 (Annexure-P/2, Page 13) to the Chief Mechanical Engineer, EC Railway, Hajipur and subsequent communication dated 16.02.2022 (Annexure-P/3, Page 20) to the General Manager, E.C. Railway, At & PO-Hajipur, which

2/6 were neither acted upon nor responded to.

In this view of the matter, more so, in view of the law laid down by Hon'ble the Apex Court in Railway Electrification Vs. M/s ECI-SPIC-SMO-MCML(JV) A Joint Venture Company; (2020) 14 SCC 712 (Para-28, 29, 30 and 31), present petition filed under Section 11(6) of the Act, needs to be allowed. The relevant paragraphs are extracted as under:-

3/6

4/6 Today, there is no dispute about-(a) the legality, validity and binding effect of a written agreement dated 16.11.2015 and subsequently entered into between the parties to the lis; (b) the existence of arbitration clause contained therein; (c) the existence of dispute(s) arising there from; (d) the dispute arisen out of the agreement being civil in nature; (e) no legal impediment in the adjudication of the dispute by the learned Arbitrator; (f) Petitioner having exhausted the channel available for resolution of dispute; (g) the respondents having failed to appoint an Arbitrator pursuant to the invocation of the

5/6 arbitration clause by the petitioner.

As such, Hon'ble Ms. Justice Indu Malhotra, Former Judge, Supreme Court of India, Mobile No.9810026757, is appointed as learned Arbitrator to adjudicate all disputes arising out of agreement dated 16.11.2015 entered into between the parties to the lis. All pleas and issues raised, on merits, are left open to be considered and decided by the learned Arbitrator. Learned Arbitrator shall be entitled to fee as per the schedule of the Act.

Since the dispute arises out of an agreement of the year 2015, it is expected of the learned Arbitrator to decide the issues expeditiously.

Parties are directed to fully cooperate and not take any unnecessary adjournment.

The proceedings, during the time of current Pandemic- Covid-19 shall be conducted through digital mode, unless the parties otherwise mutually agree to meet in person i.e. physical mode.

Joint Registrar (List) is directed to immediately communicate the order to the learned Arbitrator. Learned counsel for the parties to communicate the

6/6 order to the learned Arbitrator. Also, parties are directed to appear before him, through physical/digital mode on 08.09.2022 and apprise him of passing of this order.

Parties shall file their statement of claims before the learned Arbitrator on such date of hearing which he may fix, as per mutual convenience.

The Request Petition stands disposed of in the above terms.

Interlocutory Application(s), if any, shall stand disposed of.

Sujit/Ashwini (Sanjay Karol, CJ) AFR/NAFR CAV DATE Uploading Date 25.08.2022 Transmission Date