CONSORTIUM OF AUTOMETERS ALLIANCE LTD. AND CANNY ELEVATORS CO. LTD.  Vs CHIEF ELECTRICAL ENGINEER/PLANNING, DELHI METRO RAIL CORPORATION & ORS.

ARB.P. 420/2020 Page 1/18
IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision : January 08 , 2021

+ ARB.P. 420/2020

CONSORTIUM OF AUTOMETERS AL LIANCE LTD. AND
CANNY ELEVA TORS CO. LTD.
….. Petitioner
Through: Mr.Anirudh Wadhwa, Adv.

versus

CHIE F ELEC TRICAL ENGINEER/PLANNING, DELHI METRO
RAIL CORPORATION & ORS.
….. Respondent s
Through: Mr.Tarun Johri, Adv. for R -1

CORAM:
HON ‘BLE MR. JUSTICE V. KAMESWAR RAO
J U D G M E N T
V. KAMESWAR RAO, J (ORAL)
1. The present p etition has been file d under Section 11 of
the Arbitration and Conciliation Act, 1996 ( ‘Act’, for short) with
the following prayers:
“Therefo re, in the light of the facts and circumstances
of the present case, and the submissions made in
regard thereto, this Hon’ble Court may be pleased to:
a. Declare that Clause 17.9 of the GCC forming part of
the sa id Contract, inasmuch as it provide s for
appointment of all three arbitrators from a pan el of
arbitrators proposed by the Respondent, is void and
unenforceable;
b. Take the neces sary meas ure and secu re the
constitution of an independent and impartial Arbitral
Tribunal to adjudicate up on the claims of the
Petitioner including inter alia by taking the following
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measures:
I. (a) Recognise the appointment of Ju stice
M.M.S. Bedi (Retd, ) as the nominee arbitrator on
behalf of the Petitioner, (b) declare that the
Respondent has forfeited all its rights to
participate in t he constitution of the Arbitral
Tribunal, and consequen tly (c) appoint an
arbitrator on beha lf of the Respond ent, which
arbitrator along with Ju stice M .M.S. Bedi (Retd ),
shall mutually appoin t the third (presiding)
arbitrator;
II. In the alternative to (i) above, ta ke such other
steps or measures as may be necessa ry to secure
the constitution of an independent and imparti al
Arbitra l Tribuna l to adjud icate the claims of the
Petitioner,
c. Pass such other orders as this Hon’ble Court may
deem fit in the interests of justice .”

2. The petitioner herein is a Consortium of Autometers
Alliance Ltd. and Canny Elevators Co. Ltd. having its office at C-
63, Sector 57, Noida (UP) – 201307 . The respondent No s.1,2 and
3 (‘Respondent /DMRC’, for short) are the Chief Elect rical
Engineer/Planning , Exec utive Director (Electr ical) and Senior
General Manager, Contracts of DMR C resp ectively.
3. It is the case of the petitioner and so contended by Mr.
Anirudh Wadhwa , learned counsel appearing on its behalf that
subsequent to i ssue of a Notice Inviting Tender in S eptember
2012, for design, manufacturing , supply , installation , testing &
commissio ning of Escalators for Delhi MTRS Project Phase -III,
the pe titioner participated in the bidd ing p rocess for the sa me.
Being the successful bidder, Respondent issued a Letter of
Accept ance dated April 16, 2013 in favo ur of the petitioner and
thereafter ente red into a contract being CE-4 Lot -2 dated May 25,
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2013 (‘Contract’, for short) .
4. It is submitted by Mr. Wad hwa that the C ontract is still
operational and the petitioner continues to fulfill its obligations
under the same. It is also s tated that the peti tione r sta rted
rendering various services under the Contract and started raising
invoices for t he concerned services f rom January 2014.
5. According to him, the Respondent herein made regula r
and complete payment s against the fi rst six invoices raised by the
petitioner to wards rendering the services under the Contract for a
period spanning from January 2014 to February 2015 against
invoices bearin g Nos.13141 534, 1 4150809, 14151119,
141511 20, 14151299 and R I/14-15/644.
6. Dispute and differe nces arose th ereaf ter when
Respondent s tarted deducting certain amo unts from the invoices
raised from March 201 5. It is the case of Mr. Wad hwa that on
enquir y as to the reason for such ded uctions , vide a
communication May 19, 2015 , the Respondent raised objectio ns
against the petitioner for c harging Service Tax on the services
rendered under the C ontract and sought details of the same and its
deductions/pay ments again st previous b ills etc.
7. It is stated by Mr. Wad hwa that irrespective of various
comm unicat ions exchang ed between the parties a bout the
wrongful deductions made by the Responden t, the same was
never resolved and approximately Rs.4.30 crores have been
illegally withh eld by th e Respondent.
8. Aggrieved by the inac tion in re solving the i ssue even
after repea ted f ollow -ups and the pe titioner fulf illing i ts
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obligations , the pet itioner was constrained to inv oke the
Conciliation Procedure as per the two-stage dispute resolution
clause of the Contract on January 23, 2020 , unde r Clause 17. 6 of
the GCC read with Cla use 1 7.7 o f the SCC . The said cla uses read
as under:
17.6 With in 60 d ays of receipt of Notice of
Disputes either party shall refer the matter in
dispute to concilia tion.
Conciliation proceedings shall be initiated within 30
days of one party in viting the o ther in writing to
Concilia tion. Conciliation shall commence when the
other party accepts in writing this invitation. If the
invitation is not accepted then Conciliation shall not
take place. If the party init iating conciliation does
not receive a reply withi n 30 days from the date on
which he sends the invitation he may elect to treat
this as a rejection of the invitati on to conciliate and
inform the other party accordingly.
xxx xxx xxx
39. Sub-Clause 17.7 Conciliation procedure
Clause 17 .7 of GC C is super seded a nd replaced as
under:
For the purpose of conciliation in this contract, the
conciliation shall be undertaken by one conciliator
selected f rom p anel of conciliators maintained by
the e mplo yer, who shall be form serving or retired
engineers of Go vernm ent Department , or of Public
Sector Undertakings. Out of this panel, a list of
three Conciliators shall be sent to the Contractor
who shall choose on e of them to act as Conciliator
and conduct conciliation proceedings in accordance
with “The Arb itration a nd Conciliation Act, 1996 ”,
of India.
There will be no objectio n if conciliator so
nominated is a serving employee of DMRC who
woul d be De puty level officer and above.
The Employer and the Contractor sh all in good faith
cooperate with the Concili ator and, in particular,
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shall e ndeavour to comply with requests by the
Conciliator to submit written materials, provide
evide nce and attend meetings. Each party may, on
his own initiative or at the invitation of the
Conciliator, submit to the Conciliator sugg estio ns
for the settlement of the dispute .
When it appears to the Conciliator that there exist
elemen ts of a settlement which may be acceptable to
the parties, he shall formulate the terms of a
possible settlement and submit them to the partie s
for th eir o bserv ations. After receiving the
observations of the parties, the Conciliator may
reformulate the terms of a possible settlement in the
light of such observations.
If the parties reach agreement on a settlement of the
dispute, they may draw u p and si gn a writt en
settlement agreement. If requested by the parties,
the Conciliator may draw up, or assist the parties in
drawing up, the settlement agreement.
When the parties sign the settlement agreement , it
shall be final and binding on the partie s and pe rsons
claiming unde r them respect ively.
The Conciliator shall authenticate the settlement
agreement and furnish a copy ther eof to each of the
parties.
As far as possible, the conciliation pr oceedings
should be completed within 60 days of the receip t of
notice b y the Conciliator.
The parties shall not initiate, during the conciliation
proceedings , any arbitral or judicial proceedings in
respect of a dispute that is the subject matter of the
conciliation p roceedings. ”

9. No amicable settleme nt could be reach ed be tween the
parties und er the Concil iation Proce edings held by Sole
Conciliator appoi nted from a panel o f three Concilia tors provided
by the Respondent. Pursuant to its failur e, it is submitted, the
petitioner initiated Arbit ration proceedings i n terms of Cl ause
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17.9 of the GCC read with Secti on 21 of the Act vide arbitration
notice dated July 15, 2020 (‘Arbitration Notice ’, for short) .
Clause 17.9 of the GCC reads as u nder:
“17.9 If the efforts to resolve all or any of the
disputes through conci liation fails then such
disputes or difference, wh atsoever arising b etween
the part ies arising out of touching or relating to
construction / manufacture, measuring operation or
effect of the Contract or the breach thereof shall be
referred to Arbitration i n accord ance with the
following p rovisions:
(a) Matters t o be arbitrated upon shall be
referred to a sole Arbitrator if the total value of
the claim is upto Rs.5 million and to a panel o f
three Arbitrators if total value of claim is more
than Rs.5 million. The Employe r sha ll provide a
penal of three arbitrators which may also in clude
DMRC officers for the claims upto Rs.5 million
and a pan el of five Arbitrators which may also
include DMRC officers for claims of more than
Rs.5 million. The Contractor shall have to choo se
the sole Arbitrator from the panel of three and /
or one Arb itrator from the panel of fi ve in case
three Arbitrat ors to be appointed. The Employe r
shall also ch oose one Arbitrator from this panel
of five and the two so chosen will choose t he third
arbitrato r from the panel only. The Arbitrator(s)
shall be appointed with in a period of 30 days from
the date of receipt of written notice / demand of
appointment of Arbitrator from either party.
Neither party shall be limited in the proceedings
before such arbit rator (s) to the evidenc e or
arguments put before the Engineer for the
purpose of obtaining his decision. No decision
given by the Engineer in accordance with the
foregoing previsions shall disqualify him from
being called as a witness an d giving evidence
before the arbitrator (s) on any matter,
whatsoever, relevant to d ispute or difference
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referred to arbitrator/s . The arbitration
proceedings shall be held in Delhi only. The
language of proceedings; that of documents and
communication sh all be E nglis h.
(b) The Employer at the time of offering the panel
of Arbitrator (s) to be appointed as Arbitrator
shall also supply the information with regard to
the qualification of the said Arbitrator nominated
in the panel along with their professional
experie nce, phone nos and addresses to the
contrac tor.
(c) The aw ard of the sole Arbitrator or the award
by majo rity of three Arbitrat ors as the ca se may
be shall be binding on all parties. ”

10. It is also stated by Mr. Wad hwa that the sa id Clause only
provides for t he appointment of three arbitrators (one to b e
nominated by each p arty and the nominated ar bitrators to cho ose
the presiding arbitrator) from a panel of five arbitrators provi ded
by the DMR C. This according to the him is unworkable and
inope rative i n vie w of the amendments to the Act vide the
Arbitration and C onciliat ion (Amendmen t) Act, 2015
(‘Amendment of 2015 ’, for short) and various subsequent judicial
pronouncements r elating to th e independence and impartiality of
the arbitral process / the appoi ntmen t of the arbitrators as
prescribe d under the said Clause.
11. It is furth er stated by Mr. Wadhwa that t he petitioner vide
its Arbitrat ion No tice appointe d Jus tice M.M.S. Bedi (Retd.) as
its nominee arbitrator , reques ting the Respondent to either agree
to his appointment as the sole arbitrator or appoint its nominee
arbitrator so that both the nominee arbitra tors may a ppoint the
presiding arbitrator and the arbitrati on proceedings ma y be
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initiated at the earliest. The Arbitrati on Notice al so stated that if
the Respondent f ailed to re spond within the prescribed period of
the ti me, the petitioner would be constrain ed to approach this
Court in terms of Section 11.
12. The Respo ndent in response to the Arbitration Notice
vide communica tion dated July 30, 202 0 stated that th e
appointmen t of Justice M.M.S Bedi ( Retd.) as the sole arbi trator
or as the nominee of the petitioner is not ac ceptab le as his name
does no t appear in th e panel of arbitrator s of th e Responden t and
that in terms of Clause 17.9 of t he GCC, the p etitioner is required
to nominate an arbitra tor out of a panel of five arbitrator s
provided by the Respondent. The Respond ent also provided the
petitioner with a panel of five arbitrators to nominate one from
the same.
13. Subsequent thereto, i t is stated b y Mr. Wadhwa that the
petitioner reiterated its stand in terms of Clause 17.9 and its
unworkability vid e communication dated Augus t 06, 2020 as a
respo nse to the abov e communi cations .
14. The Respondent also vide letter dated August 19, 2020 in
response to the petitioner ’s communication , according to Mr.
Wadhwa, reiterated its arbitrary and illegitimate demand to
appoint all three arbitrators from the panel of five arbitrators
proposed by the Respondent .
15. Therefore, it is the case of the petition er and veheme ntly
contended by Mr. Wadhwa that the Respondent having failed to
appoint its nominee arbitrator within thirty days from the receipt
of the Notice , the petitioner is entitled to the relief as prayed for
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under S ection 11(6) of the Act.
16. A reply to the petit ion was duly filed by the Respondent
(DMRC) . Preliminary objection s as to the maintainability of the
petition has been raised by the Respondent stating that (i) there is
no failure of the procedure agreed to betwe en the partie s as
envisage d under clause 17 of the Contract ; and (ii) the petitioner
has failed to place on record any Board Resolution issued by their
consortium partner in favour of the signatory to the petition
authorizing him.
17. It is the case of the Respondent in its re ply and s o
contended by Mr. Tar un Johri , learned Counsel appearing on its
behalf, that pursuant to the issuance of Arbitration Notice by the
petitioner , the Respondent had given the panel of five arbitrators
vide communication dated J uly 30, 2020 , within a period of 30
days, as en visaged under Clause 17.9 (a) of the GC C and hence,
there is no cause of action for the petitioner for filing this present
petition. It is also stated by him that there is in fact no failure of
the appointment procedu re as agreed betwee n the par ties
requiring interfe rence of this Court under the provisions of the
Act.
18. It is stated by Mr. Johri that the petitioner has without any
legal justification unilateral ly declared Clause 17.9 as
unworkable and appoint ed its nominee as Sole Arbitrator vide the
Arbitration Notice and has also asked the Respondent to appoint
its nominee arbitrato r in case Respondent was not agreeable to
the nomin ation of the sole arbitrator appointe d by the petitioner .
This, according to him is in com plete di srega rd and violation of
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Clause 1 7.9 of the GCC as the petitioner never ev en asked the
Responden t for providing any panel of arbitrators for constitution
of the arbitral tribunal. In oth er words, it is state d by Mr. Johri
that the arbitrati on claus e has no t been invoked by the peti tioner
in terms of the relevant provisions of the Contract / GCC and the
Respondent has legally and correctly rejected the appointment of
the nominee arbitrator on beh alf of the peti tioner.
19. Further, i t is also state d by hi m that the initial panel had
been provided to the petitioner considering the amount in dispute
between the parties which was to the tune of Rs. 4.3 Crores
approximately.
20. That apart, i t is stated by Mr. Johri that even though t he
invocatio n of the arbitration clause by the petitioner was bad and
in violation of the procedure agreed between the parties , without
prejudice , the Respondent has enclosed a complete broad-based
panel of external arbitrator s, with its reply , from which the
petitioner can ex ercise the choice of appointing it s nominee for
adjudication of the disputes. It is also stated that the Respondent
would also appoint its nominee from the said panel provided .
21. Due reliance was also placed by him on the A pex Cou rt
judgmen t in Central Organis ation for Rail way Electrification v.
ECI-SPIC -SMO -MCML (J V), 2019 SC C Online SC 16 35;
wherein a similar arbitration clause ha s been upheld. Even
other wise, it is stated that the initial panel of five arbitrators
provided b y the Respondent consisted of an Additional District
and Se ssions Judge (Retd.) and other retired employees from
reputed organization s such as RVNL , NHPC etc., who had no
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prior professional relationship with the Responde nt/DMRC.
Therefore, the re exist s no circu mstance under Fifth or Seventh
Schedule of the Act which gi ves any doubt qua independe nce or
impartial ity of any individual on the panel.
22. A rejoinder has also been filed by th e petitioner . Mr.
Wadhwa , as part o f his rejoin der submissions once again
vehemen tly submitted that Clause 17.9 is unworkable in view of
the Amendment of 2015 . He stated that Clause 17.9 as
reproduced above was part of the Contract entered into on May
24, 2013 prior to the Amendment of 2015 . He also stated th at the
Apex Court in the judgme nt of Voestalpine Schie nen GMBH v.
Delhi Metro Rail Corporation Limited , (2017 ) 4 SCC 665 , has
clearly interpreted a pari materia clause in the GCC . The
arbitration clause in Voestalp ine Schiene n GMBH (supra)
entitling DMRC , also the respondent t herein, to short l ist a panel
of five persons from which a three -member tribunal would be
constituted was deleted with by the Apex Court as being violat ive
of the requirement of Section 12 of the Act. In thi s regard, Mr.
Wadhwa has pointed out two adverse consequences as o bserved
by the Apex Court while interpreting the clause therein viz. (i)
the limited choice given to the opposit e party as it had to cho ose
one out of five names forwarded by the other side ; and (ii) the
discretion given to DMRC to cho ose five persons , created a r oom
for suspicion in the mind of the other side that the DMRC may
have picked up its o wn favourit es.
23. Mr. Wadhwa stated that the Respondent’s continued
insistence on a bona fide con tractor su ch as the petitioner to
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comply with Clause 17.9 is therefore in wil lful disregard and
contempt of the decision in Voestalp ine Schiene n GMBH
(supra) directed against the same respondent wherein an identical
clause was struc k down.
24. He also submitted that e ven though none of the grounds
under Fifth or Sev enth Schedule of the Act are attracted for any
of the five names proposed by the petitioner , the mere fact that
the Respondent had restricted the choice of the petitioner to
choose only from five names is sufficient to create justifiable
doubts as to the i ndependence and impartiality of the arbitral
tribunal created thereto.
25. Further, Mr. Wadhwa sought to distinguish the judgment
relied upon by the petitioner in Central Organis ation for
Railway Elec trification (supra) by stating that the Respondent is
attempting to si de-step and avoid directly applicable law laid
down for it by placing reliance on law laid down in the context of
an unrelat ed organization that is vastly different in size , scope
and co mposi tion.
26. He also submitted that the purported production of a
broad -based panel of arbitrator s by the Respondent with its reply
to the present petit ion i s belated and impermissible as the same
was being produced without prejudice to the stand of Respon dent
that Clause 17.9 is valid and enforceable . According to Mr.
Wadhwa this is nothing bu t an attempt to correct without
suffer ing consequence of its own unlawful insistence on
follo wing the unworkable and inoperative procedure under
Clause 17.9 even after repeated communications from the
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petitioner intimating the same. In other words, it is his
submission that the Respond ent, having failed to follow the
modified procedure for appointment of a tribu nal as per
Voestalp ine Schiene n GMBH (supra ), has forfeited its right to
appoint an arbitrator on its behal f.
27. That apart, M r. Wadhwa also submitted that the panel
produced by the Respondent in any event is not b road based.
According to him, the Apex Court in Voestalp ine Schiene n
GMBH (supra) had clearl y stated that the panel should consi st of
(i) engineer s of prominence and high repute from the p rivate
sector apart from serving or retired engineers of government
department s and public sector undertakings ; (ii) persons with
legal background like Judges a nd la wyers of re pute; and (iii )
some dispu tes may have the dimension of accountancy, etc. and
therefore, it would be appropriate to include persons from th ese
field as well. Applying this standard to the prese nt panel
produced by the Respondent , it is subm itted by him that (i) there
are no private s ector engineers or accountants in the panel ; (ii)
there are no lawyers in the panel and; (iii) of the total 51 names
provided, there are 26 retired judg es, 22 public sector engineers
and 3 public sec tor accountan ts / finance professionals ; and
therefore , clearly in failure of the s pecific direction s as laid down
in Voestalp ine Schiene n GMBH (supra) .
28. Mr. Wadhwa also placed anchorage on a judgment of this
Court in SMS Limit ed v. Rail Vikas Nigam L imited, 202 0 SCC
Online Del 77, wherein it was found by the Court that a panel of
37 names was not sufficient ly broad -based for want of private
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sector engineers and other p rofessionals such as accountants .
Therefore, it is his submission that the panel pro duced by t he
Respondent with the reply , apart from being produce d belatedly
is also non-complia nt with specific directions of the Ap ex Court
and is insufficiently broad -based for constitution of a f air,
independent and impartial arbitral tribunal and henc e, the Cour t
should appoint a nominee arbitrator on behalf of the Respondent
and confirm the appointment of petitioner ’s nominee arbitrator .
29. On the preliminary objection raised by the Respondent
that the petitioner has failed to place on record an y board
resolut ion issued by their c onsortium partner in favour of the
signatory to the petition authorizing him, it is sub mitted by Mr.
Wadhawa that the same is h yper-technical in nature and the
consortium arrangement is duly contained in the Memorand um of
Understan ding dated Oc tober 26, 2012 and May 22, 2013
whereby the ‘Lead Member of the Consortium ’ with a power of
attorney from Canny Elevators Co. Ltd. has authorize d
Autometers Alliance Ltd. to generally represent the petitioner ’s
consortium in all dealings/matte rs in connection with o r relating
to or arising out o f the petitioner consortium ’s bid for the project
and / o r upon award thereof till the expiry of the Contract.
30. Having heard the learned counsel s for the parties and
perused the rec ord, at the outset , I may state that in substance the
challenge in this petition is to Clause 17.9 of the GCC on the
ground , it is void and un enforceable as it provides for
appointment of all three arbitrators from a p anel proposed by the
Respondent . The submission was that this process stipulated by
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the Respondent fall foul of the judgment of the Supr eme Court in
Voestalp ine Schiene n GMBH (supra) and the judgment of this
Court in SMS Limit ed (supra). I may also state on the said
premise , the petitioner h as, de hors the provisions of Clause 1 7.9
of the GC C, proposed the name of Justice M.M.S. Bedi (Retd.) to
act as a sole arbitrator or alternatively he be treated as a nomin ee
arbitrator on behalf of the petitioner and had also called upon the
Respondent to nominat e its arbit rator. Similar is the prayer made
in this petition as well . It is not in dispute that the Respondent
had prepared a panel consisting of five names . The five names
consisted of names of an Additional District and Se ssions Judge
(Retd.) and other re tired em ployees from reputed organization s
such as RVNL , NHPC etc. Whereas in the reply filed by the
Respondent , th ey have taken a stand that they have
enlarge d/broad-based the list of p anel of arbitrators to include the
names of 26 retired Judges , 22 public secto r engineers (serving /
retired) and 3 public sec tor accountants / finance professionals
(serving) . In other words, it w as submission of Mr. Johri that the
Respondent has no objection if the pet itioner chooses i ts nominee
arbitrator from the panel o f 51 nam es now prepared by the
Respondent .
31. It is also the case of t he Respondent; they will choose its
nominee arbitrator from t he said panel to enable the nominee
arbitrator s appoint a Presiding Arbitrator.
32. I find most of the argument s of M r. Wadhwa were on the
basis of the panel of five n ames as existed earlier at the time of
the filing of the petit ion. In view of the constitution of a new
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panel by the Respondent , the arguments as put forward by Mr.
Wadhwa will not survive . He has als o challe nged the constitu tion
of the new panel consistin g of 51 names by contend ing that the
same is not broad -based being in violation of the judgment of the
Supre me Court in Voestalp ine Schiene n GMBH (supra) . To put
it precisely it was his submission that there are no private sector
engineer s or accountants , lawyer s in the panel.
33. There is no d ispute that out o f the 51 names provide d,
there are 26 retired Judges , 22 public sector engineer s and three
public sector accountants / financial professional s. No do ubt, the
panel do not have persons like lawyer s of repute or accountant s /
financial p rofessionals or engineers from the private sector but
the panel consisting of 51 names is ten times the initial panel of
five names provided by the Responde nt. The dispu te between the
parties is with regard to the Service Tax. Surely, with 26 retired
Judges on the p anel and also persons , who are serving / retired
from pu blic sec tor undertakings like Ra ilways / RITES / RVNL
other than the respondent Delhi Metro Rail Corporation and it
was held by the Supreme Court in Voestalp ine Schiene n GMBH
(supra) that panel consisting of names of persons , who have
retired from other public sector undertakings w ill not be a ground
to challenge it under Sect ion 12 (5) of the Act or relev ant
Sched ules therein , this Court is of the view that arguments as
advanced by Mr. Wadhwa are not sust ainable in the facts of this
case. Further, I note that the petitioner has nominated a retired
Judge of the High Court as its nominee arbitrator and not a
person with finance background. Merely because the Respondent
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could have further broad based the panel cannot be a ground to
hold that the curren t panel of 51 names is not broad based when it
consists of names of 26 retired High Court / District / Additio nal
District Judges and serving / retired office rs of the other Public
Sector Undertakings .
34. In fact, the Supreme Cou rt in Voestalp ine Schiene n
GMB H (supra) has not disapproved the procedure of prepar ing a
panel of arbitrators , for appointing arbitrators to adj udicate the
disputes between the part ies. The ratio of the judgment of the
Supreme Court in Voestalp ine Schiene n GMBH ( supra) is that a
party must have a wider ch oice for nom inating its arbitrator from
the panel . I am of the view , the panel now prepared by the
Respondent having 51 names is br oad based and the petitioner
has a wider c hoice to choose its nominee arbitrator . If the plea of
Mr. Wadhwa ha s to be accepted and the prayer s made in the
petition are granted , it shall make the panel and the procedure
contemplated in the GCC redundan t, which is impermissible. I
also state that the reliance placed by Mr. Wadh wa on the
judgment of SMS Ltd. (s upra) is misplaced . The said judgment is
clearly distinguishable as the subsequent pa nel produced by the
respondent therein was clearly not broad -based owing to the
presence of only 8 members out of 37 in the panel provided , who
were officers retired from organization other than Railways
(respondent therein) and Public Sector Undertakings co nnected
with Railways whereas in the panel in hand , the 26 names include
retired Additional District Judges / District Judges / High Court
Judges .
2021:DHC:68
ARB.P. 420/2020 Page 18/18
35. Accordingly, the petitioner is directed to nominate a name
from the panel from 51 names prepared by the Responde nt, who
shall act its nominee arbitrator , within four we eks. Thereafter the
parties shall proceed in accordance with the Contract and law.
36. The petit ion is disposed of.

V. KAM ESWAR RA O, J
JANUARY 08 , 2021 /aky

2021:DHC:68