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Supreme Court of India
National Highway Authority Of … vs M/S Progressive Construction Ltd on 12 February, 2021Author: Hon’Ble Ms. Malhotra
Bench: Hon’Ble Ms. Malhotra, Ajay Rastogi
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 542 OF 2021
(Arising out of SLP (Civil) No. 10851 of 2020)
NATIONAL HIGHWAYS AUTHORITY OF INDIA … APPELLANT
VERSUS
M/s. PROGRESSIVE CONSTRUCTION LTD. … RESPONDENT
ORDER
INDU MALHOTRA, J.
Leave granted.
The present Appeal arises out of the Judgment passed under
Section 34 of the Arbitration and Conciliation Act, 1996 wherein the
Single Judge vide Order dated 10.04.2019 has substantially set aside
the Award dated 27.04.2016 passed by a threemember tribunal. It
has been observed that the arbitral tribunal has drawn incorrect
inferences from the documents on record, and has not considered vital
Signature Not Verified
Digitally signed by
and relevant evidence in reaching its conclusions. On this basis, a
JAGDISH KUMAR
Date: 2021.02.16
14:49:53 IST
Reason:
substantial number of claims and counter claims were rejected,
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granting liberty to the parties to reagitate their claims, and counter
claim (a) afresh in accordance with law.
Aggrieved by the judgment of the Single Judge, cross appeals
were filed by both parties under Section 37 before the Division Bench.
The Division Bench vide the impugned interim Order dated 04.12.2019
directed that the Appeals be confined to the findings with respect to
claim nos. 1(i) and (ii); and counter claim (a).
The AppellantNHAI filed the present Appeal to challenge the
interim Order dated 04.12.2019.
During the pendency of the present Appeal, the parties agreed to a
fresh adjudication of all the claims and counter claims made by the
parties before a Sole Arbitrator to be appointed by this Court.
We direct that the arbitral proceedings be conducted afresh by the
Indian Council of Arbitration, Federation House, Tansen Marg, New
Delhi110001 in accordance with its Rules. The Indian Council of
Arbitration will have the entire record of the arbitral proceedings
collected from the previous arbitral tribunal.
Accordingly, with the consent of the Counsel for the parties, we
appoint Justice G. S. Singhvi, former Judge of this Court, as the Sole
Arbitrator, who will adjudicate all the claims and counter claims
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afresh. If the Sole Arbitrator requires the assistance of qualified
Engineer/s or Expert/s, he may appoint such person/s under Section
26 of the Arbitration and Conciliation Act, 1996. The Ld. Arbitrator is
free to fix his fees after consultation with the parties, which will be
borne equally by them.
The appointment of the Sole Arbitrator is subject to the
declarations made under Section 12 of the Arbitration and Conciliation
Act, 1996 (as amended) with respect to the independence and
impartiality of the arbitrator, and the ability to devote sufficient time to
complete the proceedings within the statutory period of 12 months
under Section 29A of the Act. Parties are directed to approach the
Indian Council of Arbitration within a period of 2 weeks to fix the date
of the arbitral proceedings.
A copy of the Appeal paperbook be provided by the Registry to
the Indian Council of Arbitration, to enable it to proceed with the
matter.
In view of the aforesaid directions, the Order dated 04.12.2019
passed by the Delhi High Court in FAO(OS)(Comm) 353/2019 is set
aside. The Appeals filed by both parties under Section 37 of the
Arbitration Act being FAO (OS) (Comm) 353 and 182 of 2019 pending
before the Delhi High Court have accordingly become infructuous.
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The present Appeal is allowed in the aforesaid terms. Pending
applications, if any, stand disposed of.
…………………………………J.
(INDU MALHOTRA)
…………………………………J.
(AJAY RASTOGI)
New Delhi,
February 12th, 2021
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