Ms Skylark Telecom Services P Ltd Through Sh Raghbir Chand Mittal v. Northern Railway Through Its Chief Electric Engineer (Project) And Another

ARB-114-2026(O&M) -1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ARB-114-2026(O&M) Date of Decision: 17.04.2026 M/S SKYLARK TELECOM SERVICES (P) LTD.

....Petitioner(s)

Versus

NORTHERN RAILWAY THROUGH ITS CHIEF ELECTRIC ENGINEER (PROJECT) AND ANOTHER .....Respondent(s)

CORAM:

HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:

Mr.Ravinder Singh Virdi, Advocate, for the petitioner. Mr. Vinish Singla, Advocate, for the respondents. **** JASGURPREET SINGH PURI , J. (Oral) 1.

Reply filed by the respondents is taken on record. 2.

The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act') seeking appointment of an independent Sole Arbitrator. 3.

Learned counsel appearing on behalf of the petitioner submitted that there is an agreement between the petitioner and the respondents vide Annexure P-1, which contains an arbitration clausefor the appointment of an Arbitrator in Clause 64(3). He submitted that as per Clause 64(3)(a), the procedure has been laid down for the appointment of an Arbitrator where the applicability of Section 12(5) of the Act has been waived off. He submitted that in the present case, the applicability of Section 12(5) of the Act was waived off and in this regard, he referred to letter (Annexure P-4), which

ARB-114-2026(O&M) -2was issued by the respondents to the petitioner seeking waiver and in reply thereto, the petitioner waived the provision of Section 12(5) of the Act vide Annexure P-9. He further submitted that despite the said waiver, the respondents failed to appoint an Arbitrator, even of their own choice and submitted that since the respondents failed to appoint an Arbitrator, the petitioner issued a notice under Section 21 of the Act vide Annexure P-10 dated 19.11.2025 and still the respondents failed to appoint an Arbitrator and therefore, the present petition has been filed seeking appointment of an independent Sole Arbitrator by this Court. He also submitted that as per Clause 64(3)(a) (i), when the value of the claim is less than Rs. 1 crore, then a Sole Arbitrator is to be appointed and therefore any Independent Sole Arbitrator may be appointed by this Court since the mechanism for appointment thereof, which has been mutually agreed upon with the consent of the parties has failed.

4.

On the other hand, learned counsel appearing on behalf of the respondents submitted that there is no dispute with regard to the existence of the agreement between the parties, which contains the aforesaid clause pertaining to the appointment of an Arbitrator. He also submitted that with the consent of the parties, the applicability of Section 12(5) of the Act was waived off and the petitioner had thereafter issued a notice under Section 21 of the Act but no Arbitrator was appointed by the respondents. He submitted that however the objection of the respondents is that the claim raised by the petitioner is not arbitrable in nature in view of Clause 37 of the agreement and therefore, there was no reason for appointment of an Arbitrator by this Court.

5.

I have heard the learned counsel for the parties.

ARB-114-2026(O&M) -36.

The arbitration clause contained in the agreement i.e. Clause 64(3)(a) is reproduced as under:- "64(3) (a): Appointment of Arbitrator where applicability of section 12(5) of Arbitration and Conciliation Act has been waived off:

64(3) (a) (i): In cases where the total value of all claims in question added together does not exceed Rs.1,00,00,000/- (Rupees One Crore), the Arbitral Tribunal shall consist of a Sole Arbitrator who shall be a Gazetted Officer of Railway not below Junior Administrative Grade, nominated by the General Manager. The sole arbitrator shall be appointed within 60 days from the day when a written and valid demand for arbitration is received by General Manager."

7.

Although the applicability of Section 12(5) of the Act was waived off with the consent of the parties but still the respondents failed to appoint an Arbitrator, even after the issuance of a notice under Section 21 of the Act. The existence of the agreement between the parties containing the aforesaid arbitration clause as well as the issuance of the notice under Section 21 of the Act is not disputed by the learned counsel for the respondents.

8.

The objection raised by the learned counsel for the respondents with regard to non-arbitrability of the claim raised by the petitioner, in view of Clause 37 of the Agreement, is not sustainable in view of the settled law that at the reference stage under Section 11 of the Act, the Referral Court would not go into the aforesaid issue as to whether the claim is arbitrable or not because that lies within the scope of the learned Arbitral Tribunal/Sole Arbitrator.

ARB-114-2026(O&M) -49.

Considering the aforesaid facts and circumstances, the present petition is allowed. Sh. Parminder Pal Singh Thethi, Advocate, resident of House No. 1158, Sector 33-C, Chandigarh, Mobile No.9815498548, Email ID: ppsthethi@yahoo.com, is nominated as the Sole Arbitrator to adjudicate the dispute between the parties, subject to compliance of statutory provisions including Section 12 of the Act.

10.

Parties are directed to appear before the learned Arbitrator on date, time and place to be fixed and communicated by the learned Arbitrator at his convenience.

11.

Fee shall be paid to the learned Arbitrator in accordance with the Fourth Schedule of the Arbitration Act, as amended. 12.

Learned Arbitrator is also requested to complete the proceedings as per the time limit prescribed under Section 29-A of the Act. 13.

A request letter alongwith a copy of the order be sent to Sh. Parminder Pal Singh Thethi, Advocate.

17.04.2026 (JASGURPREET SINGH PURI) rakesh JUDGE Whether speaking :

Yes/No Whether reportable :

Yes/No