Supreme Court of India
UNION OF INDIAversusBESCO LTD.
- Citation
- 2017 INSC 273
- Decided
- 27 March 2017
- Disposal
- Dismissed
- Bench
- KURIAN JOSEPH
Holding
If circumstances so warrant, the Chief Justice or the designated judge may ignore the arbitrator specified in the agreement and appoint an independent arbitrator, subject to the qualifications prescribed in Section 11(8) of the Arbitration and Conciliation Act, 1996.
Summary
The Union of India appealed a High Court order that appointed an independent arbitrator in a dispute with BESCO Ltd. The issue was whether, under Section 11(6) of the Arbitration and Conciliation Act, 1996, the Chief Justice of a High Court or a designated judge must appoint the arbitrator named in the parties' agreement or may appoint someone else. The Court examined earlier decisions and held that while the usual rule is to give effect to the appointment procedure in the agreement, the court may deviate if there are reasonable doubts about the named arbitrator’s independence or other circumstances warrant it, provided reasons are recorded and Section 11(8) qualifications are observed. In the present case, the contract’s clause 19.0 incorporated the General and Special Conditions of Contract, which did not require a Gazetted Railway Officer as arbitrator, so the designated judge was free to nominate an independent arbitrator. Consequently, the appeal and the special leave petition were dismissed.
Issues considered
- Whether the Chief Justice of a High Court or a person/institution designated by him, exercising power under Section 11(6) of the Arbitration and Conciliation Act, 1996, is bound to nominate the arbitrator specified in the arbitration agreement.
- Whether the court may appoint an independent arbitrator despite a named arbitrator in the agreement, and under what circumstances.
Legislation cited
- Arbitration and Conciliation Act, 1996s. 11(6), s. 11(8)
Subjects
ArbitrationSection 11Appointment of arbitratorIndependence and impartialityHigh Court jurisdictionDeviation from agreementGazetted Railway Officer
Judgment
[2017] 2 S.<C.R. 743
UNION OF INDIA A
v.
BESCO LTD.
(CivilAppealNo.4483 of2017)
with B
(Special Leave Petition (Civi I) No.26614 of2014)
MARCH 27, 2017
[KURIAN JOSEPH AND R. BANUMATHI, JJ.]
Arbitration and Conciliation Act, 1996 - s.11 (6) -Appointment c
of arbitrator - Whether the Chief Justice of a High Court or any
person or institution designated by him, while exercising power
u/s.11 (6) is bound to nominate an arbitrator as specified in the
agreement for arbitration - Held: If the circumstances so warrant.
the Chief Justice or the designated Judge can ignore the ;pecified D
arbitrator as stipulated in the agreement and nominate an
independent arbitrator - In the instant case, tliere was no stipulation
in the agreement to appoint a particular category of officer _:
Therefore, designated judge of High Court rightly exercised his
powers in terms of agreement by nominating an independent
E
arbitrator.
Dismissing the appeal and the special leave petition, the
Court
HELD: 1., Even when an arbitrator is specified in the
agreement for arbitration, if circumstances so warrant, the Chief F
Justice or the designated Judge is free to appoint an independent
arbitrator, having due regard to the qualification, if any, and other
aspects as required under Se~tion 11(8) of the Act. In the instant
case, Clause 2900 of the Standard Conditions of Contract no doubt
provided that the sole arbitrator shall be a Gazetted Railway
Officer but in Clause 19.0 of the agreement dated 16.01.2012 G
executed between the parties, it is clearly s(ipulated that the
contract shall be governed by th~ General Conditions and Special
-- · Conditions of Contract. It is clear from Clau.se 19.0 that there is
no stipulation for appointment-of a Railway Officer. It can be any
person. Thus, the designated Judge of the High Court only H
743
744 SUPREME COURT REPORTS [2017] 2 S.C.R.
A exercised his powers in terms of the agreement by nominating
an independent arbitrator.[Paras 8, 9, 11)(749-G-H; 750-A-B, G)
Northern Railway Administration, Ministry of Raiiway,
New Delhi v. Patel Engineering Company Limited (2008)
10 SCC 240 : [2008) 12 SCR 216; North Eastern -
B Railway and others v. Tripple Engineering Works (2014)
9 SCC 288 : (2014] 6 SCR 1143; Indian Oil
Corporation and others v. Raja Transport Private
Limited (2009) 8 SCC 520 : [2009) 13 SCR 510 - relied
on.
c Union of India and another v. M.P. Gupta (2004) 10
SCC 504; Union of India and others v. Master
Construction Company (2011) 12 SCC 349 : [2011) S
SCR 853 - referred to.
Case Law Reference
D (2004) 10 sec 504 referred to -~
Para3
J2011J 5 SCR 853 • referred to Para3
[2008] 12 SCR 216 relied on Para4
[2014] 6 SCR 1143 relied on Para4 -
E [2009] 13 SCR 510 relied on Para7
CIVIL APPELLAT_E JURISDICTION: Civil Appeal No. 4483
of2017.
From the Judgment and Order dated 08.052014 ofthe High Court
F of Delhi at New Delhi in Arbitration Petition No. 425 of2013
WITH
Special Leave Petition( Civil) No. 26614of2014.
Maninder Singh, ASG, Sachin Sharma,Amarjeet Singh, B. Krishna
Prasad, Shreekant N. Terdal, Advs. for the Appellant.
G
Dushyant Dave, Sr. Adv., Ramesh Singh, Ms. Anne Mathew,
SumanJoyti Khaitan, T. S.Ahuja, VarunAhuja, D. K. Thakur,Devendra
Jha, Debasis Misra, Advs. for the Respondent.
The Judgment of the Court was delivered by
H
. UNION OF INDIA v. BESCO LTD. 745
KURIAN, J. 1. Leave granted. A
2. The short question arising for consideration in this case is
whether the Chief Justice of a High Court or any person or institution
designated by him, while exercising power under Section 11(6) ofThe
Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the
Act") is bound to nominate an arbitrator as specified in the agreement B
for arbitration. The designated Judge in the High Court took the view
that the appellant has lost the mandate to appoint an arbitrator since it
failed to appoint the arbitrator within the permitted time and hence
nominated an independent arbitrator.
3. Mr. Maninder Singh, learned Additional Solicitor General, placing
reliance on Union of India and anotherv. M.P. Gupta' and Union of c
India and others v. Master Construction Company', submitted that
the designated Judge, exercising the power under Section 11 ( 6) of the
Act, is bound to nominate a person as stipulated in the agreement for
arbitration. In M.P. Gupta (supra), the relevant clauses on arbitration
contained a provision that the arbitrators should be Gazetted Railway D
Officers. It may also be relevant in this context to note that the arbitration
agreement contained a specific provision that it is a term of contract that
no person other than a gazetted railway officer should act as an arbitrator/
umpire and iffor any reason, that is not possible, the matter is not to be
referred to arbitration at all. This Court hence set aside the order passed
by the designated Judge who had nominated a retired Judge as the sole E
arbitrator. In Master Construction Company (supra), the question in
issue was, in fact, left open.
4. Mr. Dushyant Dave, learned Senior Counsel appearing for the
respondent submits that once the right of a party to nominate an arbitrator
is-forfeited, the Chief Justice or the designated Judge under Section F
11(6) of the Act is free to nominate any qualified person as arbitrator
and that the Chief Justice or the designated Judge is not bound to nominate
the arbitrator as specified in the agreement. Our attention has been invited
to Northern Railway Administration, Ministry of Railway, New
Delhi v. Patel Engineering Company Limited' and North Eastern G
Railway and others v. Tripple Engineering Works'.
( 2004 J 10 sec 504
1
'(2011) 12 sec 349
'(2008) 1osec 240
'(201.i J 9 sec 2ss H
746 SUPREME COURT REPORTS [2017] 2 S.C.R.
A 5. In Patel Engineering Company Limited (supra), a three-
Judge Bench of this Court held that the Chief .Justice or the designated
Judge, if required, is free to deviate from the arbitration clause and
nominate an independent person; but while doing so, due regard shall be
given to the qualifications prescribed in the arbitration agreement, as
required under Section 11 (8) of the Act.
B
6. !11 Tripple Engineering Works (supra) also this Court
reiterated the position that the Chief Justice or the designated Judge
was free to deviate from the terms of the contract. Paragraphs-6 and 7
read as follows:
c "6. The "classical notion'' thatthe High Comt while exercising
its power under Section 11 of the Arbitration and Conciliation Act,
1996 (hereinatier for sho1t ''the Act") must appoint the arbitrator
as per the contract between the parties saw a significant erosion
in ACE Pipeline Contracts (P) Ltd. v. Bharat Pe1roleu111 ColjJ/I.
Ltd. wherein this Cou1t had taken the view that though the contract
D between the parties must be adhered to. deviations therefrom in
exceptional circumstances would be permissible. A more
significant development had come in a decision that followed soon
thcrcatler in U11io11 of India v. Bharat Bat1ery M(R. Co. f P}
Ltd wherein following a three-Judge Bench decision in Pw1i Lloyd
E Ltd. v. Pctro11et 1HHB Ltd. it was held that once an aggrieved
party files an application under Section 11(6) of the Act to the
High Cowt, the opposite party would lose its right ofappointment
of the arbitrator(s) as per the terms of the contract. The implication
that the Court would be free to deviate from the terms of the
contract is obvious.
F
7. The apparent dichotomy in ACE Pipeline and Bharat
• Batlet:Jl i14fg. Co. (!')Ltd. was reconciled by a three-Judge Bench
of this Court in Nor/Item Raihrny Ad11m. v. Patel Engg. Co.
ltd. wherein the jurisdiction of the High Court under Section 11(6)
of the Act was suught to Le emphasised by taking into account
G the expression ·'to take the necessary measure"' appearing in sub-
section ( 6) of Section 11 and by further laying down that the said
expression has to be read along with the requirement of sub-section
( 8) of Section 11 of tile Act. The position was further clarified in
Indian Oil Co1pn. Ltd. v. Raja Transport (P) Ltd. Para 48 of
H
UNION OF !NOL\'· BESCO LTD. 747
[KURIAN, JJ
the Report wherein the scope of Section 11 of the Act was A
summarised may be quoted by reproducing sub-paras (vi) and
(vii) hercinbelow: (I11dia11 Oil case, SCC p. 537)
"./8. (vi) The Chief Justice or his designate while
exercising power under sub-section (6) of SeCtion 11 shall
endeavour to give effect to the appoint111ent procedure B
prescribed in the arbitration clause.
(vii) If circumstances exist, giving rise to justifiable
doubts as to the independence and impartiality of the person
nominated, or if other circumstances warrant appointment of
an independent arbitrator by ignoring the procedure prescribed, c
the Chief Justice or his designate may, for reasons to be
recorded ignore the designated arbitrator and appoint someone
else."
(emphasis in original)"
7. In Indian Oil Coruoration and others v. Raja Transport D
Private Limited', this Court has elaborately discussed the scope of
Section 11 of the Act and held that if the circumstances so warrant, the
Chief Justice or the designated Judge can ignore the specified arbitrator
as stipulated in the agreement. Paragraphs-45 and 48, to the extent
relevant, read as follows:
E
"45. If the arbitration agreement provides for arbitration by a
named arbitrator, the courts should normally give effect to the
provisions of the arbitration agreement. But as clarified by
Northern Railway Admn., where there is material to create a
reasonable apprehension that the person mentioned in the
arbitration agreement as the arbitrator is not likely to act F
independently or impartially, or iflhe named person is not available,
then the Chief Justice or his designate may, after recording reasons
for not following the agreed procedure ofreferring the dispute to
the named arbitrator. appoint an independent arbitrator in
accordance with Section 11(8) of the Act. In other words, referring G
the disputes to the named arbitrator shall be the rule. The Chief
Justice or his designate will have to merely reiterate the arbitration
agreement by referring the parties to the named arbitrator or
named Arbitral Tribunal. Ignoring the named arbitrator/Arbitral
'<2009) s sec 520
H
748 SUPREME COURT REPORTS [2017) 2 S.C.R.
A Tribunal and nominating an independent arbitrator shall be the
exception to the rule, to be resorted for valid reasons.
xxxx xx xx xx xx xxxx xxxx
48. In the.1.ight of the above discussion, the scope of Section 11 of
the Act containing the scheme of appointment of arbitrators may
B be s.ummarised thus:
(i) Where the agreement provides for arbitration with
three arbitrators (each party to appoint one arbitrator and the
two appointed arbitrators to appoint a third arbitrator), in the
event ofa party failing to appoint an arbitrator within 30 days
c from the receipt of a request from the other party (or the two
nominated arbitrators failing to agree on the third arbitrator
within 30 days from the date of the appointment), the Chief
Justice or his designate will exercise power under sub-section
(4) of Section 11 of the Act.
D (ii) Where the agreement provides for arbitration by a
sole arbitrator and the parties have not agreed upon any
appointment procedure, the Chief Justice or his designate will
exercise power under sub-section (5) of Section 11, ifthe parties
fail to agree on the arbitration within thirty days from the receipt
E of a request by a party from the other party.
(iii) Where the arbitration agreement specifies the
appointment procedure, then irrespective of whether the
arbitration is by a sole arbitrator or by a three-member Tribunal,
the Chief Justice or his designate will exercise power under
sub-section (6) of Section 11, if a party fails to act as required
F
under the agreed procedure( or the parties or the two appointed
arbitrators fail to reach an agreement expected of them under
the agreed procedure or any person/institution fails to perform
any function entrusted to him/it under that procedure).
(iv) While failure of the other party to act within 30
G
days wit I furnish a cause of action to the party seeking arbitration
lo approach the Chief Justice or his designate in cases falling
under sub-sections (4) and (5), such a time-bound requirement
is not found in sub-section (6)ofSection 11. The failure to act
as per the agreed procedure within the time-limit prescribed
H
UNION OF INDIA v. BESCO LTD. 749
[KURIAN, J.]
by the arbitration agreement, or in the absence of any A
prescribed time-limit, within a reasonable time, will enable the
aggrieved party to ti le a petition under Section 11 ( 6) of the
Act.
(v) Where the appointment procedure has been agreed
between the parties, but the cause of action for invoking the B
jurisdiction of the Chief Justice or his designate under clauses
(a), (b) or (c) of sub-section (6) has not arisen, then the question
of the Chief Justice or his designate exercising power under
sub-section (6) does not arise. The condition precedent for
approaching the Chief Justice or his designate for taking
necessary measures under sub-section (6) is that c
(i) a party failing to act as required under the agreed
appointment procedure; or
(ii) the parties (or the two appointed arbitrators) failing
to reach an agreement expected of them under the agreed D
appointment procedure; or
(iii) a person/institution who has been entrusted with
any function underthe agreed appointment procedure, failing
to perform such function.
(vi) The Chief Justice or his designate while exercising E
power under sub-section (6) of Section 11 shall endeavour
to give effect to the appointment procedure prescribed·
in the arbitration clause.
(vii) If circumstances exist, giving rise to justifiable
doubts as to the independence and impartiality of the person F
nominated, or if other circumstances warrant appointment
of an independent arbitrator by ignoring the procedure
prescribed, the Chief Justice or his designate may, for reasons
to be recorded ignore the designated arbitrator and appoint
someone else."
G
8. Thus, the issue is no more res integra. Thqugh an arbitrator is
specified in the agreement for arbitration, if circumstances so warrant,.
the Chief Justice or the designated Judge is free to appoint an independent
arbitrator, having due regard to the qualification, ifany, and other aspects
as required under Section 11(8) of the Act.
H
750 SUPREME COURT REPORTS (2017] 2 S.C.R.
A 9. On the facts of the present case. one wonders whether the
issue actually arnse or not. Clause 2900 of the Standard Conditions of
Contract no doubt provides that the sole arbitrator shall be a Gazetted
Railway Officer but in Clause 19.0 of the agreement dated 16.01.2012
executed between the parties. it is clearly stipulated that the contract
shall be governed by the General Conditions and Special Conditions of
B
Contract. Clause 19.0 specifically provides that ... '"the contract shall be
governed by the general conditions and special conditions of coi1tract.
I 0. Paragraph-18.0 of the General Conditions and Special
Conditions of Contract, reads as follows:
c
"18.0 ARBITRATION:
(a) In the event of any question, dispute or difference arising
under these conditions or any special condition of contract,
or in connection with this contract (except as to any matters
D the decision of which is specially provided for by these or
the special conditions) the same shall be referred to the sole
Arbitration of a person appointed to be arbitrator, by the
General Manager in the case contracts entered into by the
Zonal Railways and Production Units by the member of the
Railway Board concerned, in the case of contracts entered
E into by the Railway Board and by the head of the
organizations in respect of the contracts entered into by the
other organizations under the Ministry of Railways. There
will be no objection if the arbitrator is a Government Servant
that he had to deal with matters to which the contract relates
F or that in the course of his duties as a Government Servant,
he has expressed views on all or any of the matters in disputes
or difference. The award of the Arbitrator shall be final and
binding on the parties to this contract."
11. Thus, it is clear that there is no stipulation for appointment of
G a Railway Officer. It can be any person. The designated Judge of the
High Court has only exercised his powers in terms of the agreeruent by
nominating an independent arbitrator.
12. Thus, we find no merit in this appeal and the same is
accordingly dismissed. There shall be no order as to costs.
H
UNION OF INDIA v. BESCO LTD. 751
[KURIAN, J.]
SPECIAL LEAVE PETITION (CIVIL) NO. 26614 01•' 2014 A
13. In view of the Judgment of this Com1 in Civil Appeal No.
4483 of2017 @ Special Leave Petition (Civil) No. 17838 of 2014, we
find no merit in this petition and the same is accordingly dismissed. There
shall be no order as to costs.
13
Devika Gujral Appeal mul SLP disn1issed.
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