WALTER BAU AG VERSUS MUNICIPAL CORPORATION OF GREATER MUMBAI

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION CASE (CIVIL) NO.35 OF 2014

WALTER BAU AG,LEGAL SUCCESSOR,

OF THE ORIGINAL CONTRACTOR,

DYCKERHOFF & WIDMANN A.G. …PETITIONER

VERSUS

MUNICIPAL CORPORATION OF GREATER

MUMBAI & ANR. …RESPONDENTS

 

The respondent Corporation having failed to respond to the notice dated 24th February, 2014 of the petitioner, an approach was made to the ICADR by the petitioner on 19th May, 2014. On the basis thereof, the ICADR by its letter dated 3rd June, 2014 called upon the respondent Corporation to make appointment of an Arbitrator from a panel of three names that was furnished to the respondent Corporation or to independently appoint an arbitrator. The respondent Corporation pursuant to the said communication of the ICADR appointed Mr. Justice (Retd.) A.D.Mane as its arbitrator by communication dated 3rd July, 2014. Thereafter, this application/petition under Section 11(6)of the Arbitration and Conciliation Act,1996 (for short “the Arbitration Act”) was filed on 21st August, 2014.Mr. Shamik Sanjanwala, learned counsel appearing for the petitioner has submitted that the arbitration clause in the agreement read with Rules 5 and 35 of the ICADR Rules embody a procedure that was agreed upon by the parties with regard to appointment of the arbitrator(s).Clearly and evidently, the appointment of Mr. Justice A.D. Mane by the respondent Corporation is contrary to the procedure agreed upon inasmuch as under the relevant Rules governing the ICADR, the said Body was required to communicate the respondent Corporation a panel of three names and it is from the said panel that the respondent Corporation was required to name its Arbitrator. The Rules do not contemplate an alternative procedure giving the respondent Corporation liberty to appoint an Arbitrator of his choice once the respondent Corporation failed to appoint its arbitrator within the agreed upon period of thirty days from the receipt of the notice from the petitioner. The appointment of Mr. Justice A.D.Mane as Arbitrator is, therefore, non-est, leaving it open for this Court to exercise its powers under Section 11(6) of the Act to appoint an Arbitrator on behalf of the respondent Corporation. It is also pointed out that the petitioner has a serious basis to question the impartiality and independence of the arbitrator purported to be appointed by the respondent Corporation….read more