M/S Heaven On Ocean Tourism Pvt. Ltd. And ANR. v. Andaman And Nicobar Islands Integrated Development Corporation

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** AP/10/2022 M/s Heaven On Ocean Tourism Pvt. Ltd and another Vs.

Andaman and Nicobar Islands Integrated Development Corporation Mr. Mohammed Tabraiz ... for the petitioner Ms.Anjili Nag ... for the respondent March 20, 2023 [SR] Item No.15 This is an application, which has been filed for appointment of arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996.

The arbitration clause is at clause 27 of the Contract, which is as follows:- "27.Amicable Settlement of Dispute In case of any dispute between the ANIIDCO and the TENANT, all reasonable efforts shall be made for an amicable settlement in the first instance. Unresolved dispute between the ANIIDCO and the TENANT shall be referred to Sole Arbitrator to be appointed by the Managing Director, ANIIDCO Ltd., Port Blair. Within thirty days of receipt of notice from the TENANT of his intention to refer the dispute to Arbitration, the ANIIDCO shall finalize a panel of three Arbitrators and intimate the same to the TENANT. The TENANT shall within fifteen days of receipt of the list, select and confirm his acceptance to the appointment of one from the panel as Arbitrator.

If the TENANT fails to communicate his selection of name within the stipulated period, the ANIIDCO shall, without delay, select one from the panel and appoint him as the Sole Arbitrator. If the ANIIDCO fails to send such a panel within fifteen thirty days as stipulated, the TENANT shall send a similar panel to the ANIIDCO within thirty days. The ANIIDCO shall then select one from the panel and appoint him as the Sole Arbitrator within fifteen days.

shall communicate to the ANIIDCO the name of one from the panel who shall then be the Sole Arbitrator. The appointment of Sole Arbitrator so made shall be final and conclusive.

The Arbitration shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) or any statutory modification, or re-enactment thereof and the rules made there under and for the time being in force shall apply to the Arbitration proceedings. The venue of the Arbitration shall be at Port Blair only. Fees and other expenses payable to the Arbitrator shall be paid equally by both the parties. The Arbitrator shall give reasons for the award of the decision of the Sole Arbitrator shall be final and binding on both the parties as per the Arbitration and Conciliation Act, 1996.

Performance under the Contract shall, if reasonably possible, continue during the Arbitration proceedings and payments due to the ANIIDCO by the TENANT or VICEVERSA shall not be withheld, unless they are the subject of the Arbitration proceedings." Here, the arbitration clause has given power to the Managing Director, Andaman and Nicobar Islands Integrated Development Corporation Limited (ANIIDCO), one of the litigating parties to appoint arbitrator from three names to be sent to the claimant. But, according to the judgment delivered in Perkins Eastman Architects DPC and another vs. HSSC(India) Ltd. reported in (2019) SCC Online SC 1517, a person interested in the outcome of the arbitration, cannot appoint an arbitrator. Here, definitely the Managing Director, ANIIDCO is a person interested in the outcome of the arbitration. Therefore, three names sent by the respondent herein, is an act which is void ab initio.

Therefore, I appoint Mr. Ajay Krishna Chatterjee, learned Senior Advocate of the Calcutta High Court as an arbitrator to adjudicate the dispute under the Arbitration and Conciliation Act, 1996.

The learned arbitrator is requested to fix the remuneration in accordance with the IVth Schedule at the first sitting of the parties to be shared by the parties in equal share.

Other costs, charges and expenses of the arbitrator shall be equally shared by the parties.

Learned arbitrator is requested to complete the reference within a period of eighteen months from the date of filing of the statement of claim afresh by the claimant. It would be open to the learned arbitrator to conduct the proceedings physically or virtual or hybrid mode as may be convenient to the learned arbitrator and the parties and the place of arbitration will be decided by the arbitrator considering the convenience of the parties and of the arbitrator himself.

Accordingly, this arbitration petition, being AP/10/2022, is disposed of.

( Abhijit Gangopadhyay, J. )