1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION PETITION (CIVIL) NO. 50 OF 2016

M/S. VOESTALPINE SCHIENEN GMBH .....APPELLANT(S)

VERSUS

DELHI METRO RAIL CORPORATION LTD. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

The petitioner, which is a Company incorporated under the laws of

Austria, with its registered office in that country, has its branch office in

DLF City, Gurgaon, Phase-II, India as well. It is engaged, inter alia, in

the business of steel production with the use of advance technology, like

Rolling Technology and Heat Treatment Technology, as well as

manufacturing, producing and supplying rails and related products. It

claims to be a European market leader and innovation pioneer with a

worldwide reputation which has played a decisive role in the

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development of modern railway rails. The respondent, Delhi Metro Rail

Corporation Ltd. (DMRC) awarded the contract dated 12

th

August, 2013

to the petitioner for supply of rails. Certain disputes have arisen

between the parties with regard to the said contract inasmuch as the

petitioner feels that respondent has wrongfully withheld a sum of euro

5,31,276/- (Euro Five Lakhs Thirty One Thousand Two Hundred and

Seventy Six only) towards invoices raised for supply of last lot of 3000

MT of rails and has also illegally encashed performance bank

guarantees amounting to EURO 7,83,200/- (Euro Seven Lakhs Eighty

Three Thousand Two Hundred only). Respondent has also imposed

liquidated damages amounting to EURO 4,00,129.397/- (Euro Four

Hundred Thousand One Hundred Twenty Nine and Cent Three Hundred

Ninety Seven Only) and invoked price variation clause to claim a deposit

of EURO 4,87,830/- (Euro Four Lakhs Eighty Seven Thousand Eight

Hundred Thirty). Not satisfied with the performance of the petitioner, the

respondent has suspended the business dealings with the petitioner for

the period of six months. The petitioner feels aggrieved by all the

aforesaid actions and wants its claims to be adjudicated upon by an

Arbitral Tribunal, having regard to the arbitration agreement between the

parties as contained in Clause 9.2 of General Conditions of Contract

(GCC) read with Clause 9.2 of Special Conditions of Contract (SCC).

2)It may be pointed out, at the outset, that arbitration agreement between

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the parties, as contained in the aforesaid clause of the contract is not in

dispute. It may also be pointed out that Clause 9.2(A) of the SCC

prescribes a particular procedure for constitution of the Arbitral Tribunal

which, inter alia, stipulates that the respondent shall forward names of

five persons from the panel maintained by the respondent and the

petitioner will have to choose his nominee arbitrator from the said panel.

As per the events mentioned in detail hereinafter, the respondent had, in

fact, furnished the names of five such persons to the petitioner with a

request to nominate its arbitrator from the said panel. However, it is not

acceptable to the petitioner as the petitioner feels that the panel

prepared by the respondent consists of serving or retired engineers

either of respondent or of Government Department or Public Sector

Undertakings who do not qualify as independent arbitrators. According

to the petitioner, with the amendment of Section 12 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as the 'Act') such a panel,

by Amendment Act, 2015, as prepared by the respondent, has lost its

validity, as it is contrary to the amended provisions of Section 12 of the

Act. For this reason, the petitioner has preferred the instant petition

under Section 11(6) read with Section 11(8) of the Act for appointment of

sole arbitrator/arbitral tribunal under Clause 9.2 of GCC read with Clause

9.2 of SCC of the Contract dated August 12, 2013.

3)With the aforesaid preliminary introduction reflecting the nature of these

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proceedings, we may take note of the relevant and material facts in

some detail.

Around January, 2013, the respondent had floated a tender for the

procurement of 8000 Metric Tons (MT) “Head Hardened Rails of certain

specifications for Delhi Metro, Phase-III projects and invited bids from

the eligible bidders. The petitioner was one such bidder whose bid was

ultimately accepted after tender evaluation process undertaken by the

respondent. It resulted in the signing of contract agreement dated

August 12, 2013 between the parties for the supply of the aforesaid

material. As per the petitioner, it has duly delivered the rails in three lots

of 3000MT, 3000MT and 2000MT rails on January 13, 2014, January 19,

2014 and August 03, 2014 respectively at sea port at Mumbai, which

delivery, according to the petitioner, was well within the agreed time

limits. However, after the delivery of the aforesaid rails at Mumbai,

inland transport thereof from Mumbai to Respondent's depots at Delhi

was delayed due to various reasons. As per the petitioner, these

reasons are not attributed to it and it cannot be faulted for the same.

However, the respondent treated it as default on the part of the petitioner

and imposed liquidated damages vide its letter dated September 21,

2015. The respondent also called upon the petitioner to submit its final

bill so that the liquidated damages could be set off against the said bill.

This was the starting point of dispute between the parties, as the

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petitioner refuted the allegations of the respondent and questioned the

imposition of liquidated damages as well as calculations thereof.

Correspondence ensued and exchanged between the parties but it may

not be necessary to state the same in detail here as that would be the

subject matter of adjudication before the arbitral tribunal. Suffice it to

state that respondents also encashed the bank guarantee and raised

claims against the petitioner as balance amount due from the petitioner.

On the other hand, the petitioner states that it is the respondent which

has to pay substantial amounts to the petitioner and a glimpse of the

claims of the petitioner has already been indicated above.

4)One thing is clear, there are disputes between the parties giving rise to

claims and counter claims against each other and these pertain to and

arise out of contract dated August 12, 2013. In view of these disputes

and after receipt of communication dated April 28, 2016 whereby

respondent had taken a decision to suspend business dealings with the

petitioner for a period of six months, and feeling aggrieved thereby, the

petitioner issued a legal notice dated May 11, 2016 through his

advocates calling upon the respondent to withdraw the suspension

orders with a threat to resort to legal proceedings if the same was not

done within a period of seven days. The respondent did not succumb to

the said demand and this inaction provoked the petitioner to approach

the High Court by filing Writ Petition no. 5439 of 2016 challenging

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respondent's action of suspending business with the petitioner . In this

petition, order dated June 03, 2016 has been passed by the Delhi High

Court thereby directing the respondent to keep its decision of

suspension with the petitioner, in abeyance.

5)The petitioner states that thereafter it invoked the dispute resolution

clause and made efforts to amicably resolve the dispute. However, the

said attempt failed and on June 14, 2016, the petitioner invoked the

arbitration clause.

6)At this juncture, we would like to reproduce Clause 9.2 of GCC as well

as Clause 9.2 of SCC.

“9.2.If, after twenty-eight (28) days from the

commencement of such informal negotiations, the parties

have failed to resolve their dispute or difference by such

mutual consultation, then either the Purchaser or the

Supplier may give notice to the other party of its intention

to commence arbitration, as hereinafter provided, as to the

matter in dispute, and no arbitration , as hereinafter

provided, as to the matter in dispute, and no arbitration in

respect of this matter may be commenced unless such

notice is given. Any dispute or difference in respect of

which a notice of intention, to commence arbitration has

been given in accordance with this Clause shall be finally

settled by arbitration. Arbitration may be commenced with

this Clause shall be finally settled by arbitration.

Arbitration may be commenced prior to or after delivery of

the Goods under the Contract Arbitration proceedings shall

be conducted in accordance 'with the rules of procedure

specified in the SCC”

9.2.The rules of procedure for arbitration proceedings

pursuant to GCC Clause 9.2 shall be as follows:

ARBITRATION & RESOLUTION OF DISPUTES:

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The Arbitration and Conciliation Act – 1996 of India shall

be – applicable. Purchaser and the supplier shall make

every necessary effort to resolve amicably by direct and

informal negotiation any disagreement or dispute arising

between them under or in connection with contract.

Arbitration: If the efforts to resolve all or any of the

disputes through conciliation fails, then such, disputes or

differences, whatsoever arising between the parties,

arising but of touching or relating to supply/manufacture,

measuring operation or effect of the Contract or the breach

thereof shall be referred to Arbitration, in accordance with

the following provisions:

(a)Matters to be arbitrated upon shall be referred to a

sole Arbitrator where the total value of claims does not

exceed Rs. 1.5 million. Beyond the claim limit of Rs. 1.5

million. Beyond the claim limit of Rs. 1.5 million, there

shall be three Arbitrators. For this purpose the

Purchaser will make out a panel of engineers with the

requisite qualifications and professional experience.

This panel will be of serving or retired engineers

“Government Departments or of Public Sector

Undertakings;

(b)For the disputes to be decided by a sole Arbitrator,

a 'list of three engineers taken the aforesaid panel will be

sent to the supplier by the Purchaser from which the

supplier will choose one;

(c)For the disputes to be decided by three

Arbitrators, the Purchaser will make out a list of five

engineers from the aforesaid panel. The supplier and

Purchaser shall choose one Arbitrator each, and the

two so chosen shall choose the third Arbitrator from

the said list, who shall act as the presiding Arbitrator;

(d)Neither party shall be limited in the proceedings

before such Arbitrators(s) to the evidence or the

arguments put before the Conciliator;

(e)The Conciliation and Arbitration hearings shall be

held in Delhi only. The language of the proceedings that of

the documents and communications shall be English and

the awards shall be made in writing. The Arbitrators shall

always give item-wise and reasoned awards in all cases

where the total claim exceeds Rs. One million; and

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(f)The award of the sole Arbitrator or the award by

majority of three Arbitrators as the case may be and shall

be binding on all parties.”

7)As per the aforesaid procedure, having regard to the quantum of claims

and counter claims, three arbitrators are to constitute the arbitral tribunal.

The agreement further provides that respondent would make out a panel

of engineers with the requisite qualifications and professional

experience, which panel will be of serving or retired engineers of

government departments or public sector undertakings. From this panel,

the respondent has to give a list of five engineers to the petitioner and

both the petitioner and the respondent are required to choose one

arbitrator each from the said list. The two arbitrators so chosen have to

choose the third arbitrator from that very list, who shall act as the

presiding arbitrator.

8)In the letter dated June 14, 2016, addressed by the petitioner to the

respondent while invoking arbitration, the petitioner took the stand that

appointment of the arbitral tribunal as per the aforesaid clause from a

panel of five persons comprising of serving or retired engineers of

government departments or public sector undertakings, if followed,

would lead to appointment of 'ineligible persons' being appointed as

arbitrators, in view of Section 12(5) of the Act read with Clause 1 of

Seventh Schedule to the same Act. The petitioner, thus, nominated a

retired judge of this Court as a sole arbitrator and requested the

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respondent for its consent.

9)The respondent, vide its letter dated July 08, 2016, stuck to the

procedure as prescribed for the arbitration clause and asked the

petitioner to nominate an arbitrator from the panel of five persons which

it forwarded to the petitioner. Thereafter vide letter dated July 19, 2016,

the respondent appointed one person as its nominee arbitrator from the

said list of five persons who is a retired officer from Indian Railway

Service of Engineers (IRSE) and called upon the petitioner to appoint its

nominee arbitrator from the remaining panel of four persons. At this

juncture, on August 17, 2016 present petition under Section 11 of the Act

was filed by the petitioner for constitution of the arbitral tribunal by this

Court with the prayer that the arbitrator nominated by the petitioner (i.e.

a former Judge of this Court) should be appointed as the sole arbitrator if

the respondent consents to it or any impartial and independent sole

arbitrator if appointment of the petitioner's nominee is objected to by the

respondent. Alternate prayer is made for appointment of an independent

and impartial arbitral tribunal comprising of three members under

Section 11(6) read with Section 11(8) of the Act for adjudication of the

disputes between the parties.

10)The respondents have contested the petition by filing its detailed reply,

inter alia, taking upon the position that in view of the specific agreement

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between the parties containing arbitration clause, which prescribes the

manner in which arbitral tribunal is to be constituted, present petition

under Section 11(6) of the Act is not even maintainable. The respondent

maintains that arbitration agreement as per which arbitral tribunal is to

be constituted from the panel prepared by the respondent does not

offend provisions of Section 12 of the Act as maintained in the year

2015. It is submitted that the agreement valid, operative and capable of

being performed and the arbitrators proposed by the respondent are not

falling in the category of 'prohibited clause' as stipulated in under

Section 12(5) of the Act read with clause 1 of the 7

th

Schedule thereto.

As per the respondent, since the arbitration involves adjudication of

technical aspects, the respondents have proposed the panel of retired

engineers of the government having requisite expertise to arbitrate the

sub-matter. They are neither serving nor past employees of the DMRC

and have no direct or indirect relations with the DMRC. Therefore, they

are capable of arbitrating the subject matter without compromising their

independence and impartiality.

11)In support of the aforesaid plea taken in the petition, Mr. Gopal Jain,

learned senior counsel appearing for the petitioner submitted that the

entire ethos and spirit behind the amendment in Section 12 by

Amendment Act, 2015 were to ensure that the arbitral tribunal consists of

totally independent arbitrators and not those persons who are connected

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with the other side, even remotely. He submitted that Respondent No. 1,

i.e., DMRC was public sector undertaking which had all the trappings of

the Government and, therefore, even those persons who were not in the

employment of DMRC, but in the employment of Central Government or

other Government body/public sector undertakings should not be

permitted to act as arbitrators. He submitted that the very fact that the

panel of the arbitrator consisted only of 'serving or retired engineers of

Government departments or public sector undertaking' defied the

neutrality aspect as they had direct or indirect nexus/privity with the

respondent and the petitioner had reasonable apprehension of likelihood

of bias on the part of such persons appointed as arbitrators, who were

not likely to act in an independent and impartial manner.

12)Mr. Mukul Rohatgi, learned Attorney General justifying the stand taken

by the respondent, with the aid of the provisions of the Act and the case

law, also drew attention to a subsequent development. He pointed out

that though in its earlier letter dated July 8, 2016 addressed by the

respondent to the petitioner, a list of persons was given asking the

petitioner to choose its arbitrator therefrom, the respondent has now

forwarded to the petitioner the entire panel of arbitrator maintained by it.

This fresh list contains as many as 31 names and, therefore, a wide

choice is given to the petitioner to nominate its arbitrator therefrom. It

was further pointed out that many panelists were the retired officers from

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Indian Railways who retired from high positions and were also having

high degree of technical qualifications and experience. The said list

included five persons who were not from railways at all but were the

ex-officers of the other bodies like, Delhi Development Authority (DDA)

and Central Public Works Department (CPWD). No one was serving or

ex-employee of the DMRC. He further submitted that merely because

these person had served in railways or other government departments,

would not impinge upon their impartiality.

13)From the stand taken by the respective parties and noted above, it

becomes clear that the moot question is as to whether panel of

arbitrators prepared by the respondent violates the amended provisions

of Section 12 of the Act. Sub-section (1) and sub-section (5) of Section

12 as well as Seventh Schedule to the Act which are relevant for our

purposes, may be reproduced below.

“Section 12(1), the following sub-section shall be

substituted, namely:—

“(1) When a person is approached in connection with his

possible appointment as an arbitrator, he shall disclose in

writing any circumstances,—

(a) such as the existence either direct or indirect, of

any past or present relationship with or interest in any

of the parties or in relation to the subject-matter in

dispute, whether financial, business, professional or

other kind, which is likely to give rise to justifiable

doubts as to his independence or impartiality; and

(b) which are likely to affect his ability to devote sufficient

time to the arbitration and in particular his ability to

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complete the entire arbitration within a period of twelve

months.

Explanation 1.—The grounds stated in the Fifth Schedule

shall guide in determining whether circumstances exist

which give rise to justifiable doubts as to the independence

or impartiality of an arbitrator.

Explanation 2.—The disclosure shall be made by such

person in the form specified in the Sixth Schedule.”;

(ii) after sub-section (4), the following sub-section shall be

inserted, namely:—

“(5) Notwithstanding any prior agreement to the

contrary, any person whose relationship, with the

parties or counsel or the subject-matter of the dispute,

falls under any of the categories specified in the

Seventh Schedule shall be ineligible to be appointed

as an arbitrator:

Provided that parties may, subsequent to disputes having

arisen between them, waive the applicability of this

sub-section by an express agreement in writing.

THE SEVENTH SCHEDULE

Arbitrator’s relationship with the parties or counsel

1. The arbitrator is an employee, consultant, advisor or

has any other past or present business relationship

with a party.

2. The arbitrator currently represents or advises one of the

parties or an affiliate of one of the parties.

3. The arbitrator currently represents the lawyer or law firm

acting as counsel for one of the parties.

4. The arbitrator is a lawyer in the same law firm which is

representing one of the parties.

5. The arbitrator is a manager, director or part of the

management, or has a similar controlling influence, in an

affiliate of one of the parties if the affiliate is directly

involved in the matters in dispute in the arbitration.

6. The arbitrator’s law firm had a previous but terminated

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involvement in the case without the arbitrator being

involved himself or herself.

7. The arbitrator’s law firm currently has a significant

commercial relationship with one of the parties or an

affiliate of one of the parties.

8. The arbitrator regularly advises the appointing party or

an affiliate of the appointing party even though neither the

arbitrator nor his or her firm derives a significant financial

income therefrom.

9. The arbitrator has a close family relationship with one of

the parties and in the case of companies with the persons

in the management and controlling the company.

10. A close family member of the arbitrator has a

significant financial interest in one of the parties or an

affiliate of one of the parties.

11. The arbitrator is a legal representative of an entity that

is a party in the arbitration.

12. The arbitrator is a manager, director or part of the

management, or has a similar controlling influence in one

of the parties.

13. The arbitrator has a significant financial interest in one

of the parties or the outcome of the case.

14. The arbitrator regularly advises the appointing party or

an affiliate of the appointing party, and the arbitrator or his

or her firm derives a significant financial income therefrom.

Relationship of the arbitrator to the dispute

15. The arbitrator has given legal advice or provided an

expert opinion on the dispute to a party or an affiliate of

one of the parties.

16. The arbitrator has previous involvement in the case.

Arbitrator’s direct or indirect interest in the dispute

17. The arbitrator holds shares, either directly or indirectly,

in one of the parties or an affiliate of one of the parties that

is privately held.

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18. A close family member of the arbitrator has a

significant financial interest in the outcome of the dispute.

19. The arbitrator or a close family member of the

arbitrator has a close relationship with a third party who

may be liable to recourse on the part of the unsuccessful

party in the dispute.

Explanation 1.—The term “close family member” refers to

a spouse, sibling, child, parent or life partner.

Explanation 2.—The term “affiliate” encompasses all

companies in one group of companies including the parent

company.

Explanation 3.—For the removal of doubts, it is clarified

that it may be the practice in certain specific kinds of

arbitration, such as maritime or commodities arbitration, to

draw arbitrators from a small, specialized pool. If in such

fields it is the custom and practice for parties frequently to

appoint the same arbitrator in different cases, this is a

relevant fact to be taken into account while applying the

rules set out above.’. ”

14)It is a well known fact that the Arbitration and Conciliation Act, 1996 was

enacted to consolidate and amend the law relating to domestic

arbitration, inter alia, commercial arbitration and enforcement of foreign

arbitral awards etc. It is also an accepted position that while enacting

the said Act, basic structure of UNCITRAL Model Law was kept in mind.

This became necessary in the wake of globalization and the adoption of

policy of liberlisation of Indian economy by the Government of India in

the early 90s. This model law of UNCITRAL provides the framework in

order to achieve, to the maximum possible extent, uniform approach to

the international commercial arbitration. Aim is to achieve convergence

in arbitration law and avoid conflicting or varying provisions in the

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arbitration Acts enacted by various countries. Due to certain reasons,

working of this Act witnessed some unpleasant developments and need

was felt to smoothen out the rough edges encountered thereby. The

Law Commission examined various shortcomings in the working of this

Act and in its first Report, i.e, 176

th

Report made various suggestions for

amending certain provisions of the Act. This exercise was again done by

the Law Commission of India in its Report No. 246 in August, 2004

suggesting sweeping amendments touching upon various facets and

acting upon most of these recommendations, Arbitration Amendment Act

of 2015 was passed which came into effect from October 23, 2015.

15)Apart from other amendments, Section 12 was also amended and the

amended provision has already been reproduced above. This

amendment is also based on the recommendation of the Law

Commission which specifically dealt with the issue of 'neutrality of

arbitrators' and a discussion in this behalf is contained in paras 53 to 60

and we would like to reproduce the entire discussion hereinbelow:

“NEUTRALITY OF ARBITRATORS

53. It is universally accepted that any quasi-judicial

process, including the arbitration process, must be in

accordance with principles of natural justice. In the

context of arbitration, neutrality of arbitrators, viz.

their independence and impartiality, is critical to the

entire process.

54. In the Act, the test for neutrality is set out in section

12(3) which provides – “An arbitrator may be challenged

only if (a) circumstances exist that give rise

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to justifiable doubts as to his independence or

impartiality...”

55. The Act does not lay down any other conditions to

identify the “circumstances” which give rise to “justifiable

doubts”, and it is clear that there can be many such

circumstances and situations. The test is not whether,

given the circumstances, there is any actual bias for that is

setting the bar too high; but, whether the circumstances in

question give rise to any justifiable apprehensions of

bias.

56. The limits of this provision has been tested in the

Indian Supreme Court in the context of contracts with

State entities naming particular persons/designations

(associated with that entity) as a potential arbitrator. It

appears to be settled by a series of decisions of the

Supreme Court (See Executive Engineer, Irrigation

Division, Puri v. Gangaram Chhapolia, 1984 (3) SCC 627;

Secretary to Government Transport Department, Madras v.

Munusamy Mudaliar, 1988 (Supp) SCC 651; International

Authority of India v. K.D. Bali and Anr, 1988 (2) SCC 360;

S. Rajan v. State of Kerala, 1992 (3) SCC 608; M/s. Indian

Drugs & Pharmaceuticals v. M/s. Indo-Swiss Synthetics

Germ Manufacturing Co.Ltd., 1996 (1) SCC 54; Union of

India v. M.P. Gupta, (2004) 10 SCC 504; Ace Pipeline

Contract Pvt. Ltd. v. Bharat Petroleum Corporation Ltd.,

2007 (5) SCC 304) that arbitration agreements in

government contracts which provide for arbitration by a

serving employee of the department, are valid and

enforceable. While the Supreme Court, in Indian Oil Corp.

Ltd. v. Raja Transport (P) Ltd., 2009 8 SCC 520 carved out

a minor exception in situations when the arbitrator “was

the controlling or dealing authority in regard to the subject

contract or if he is a direct subordinate (as contrasted from

an officer of an inferior rank in some other department) to

the officer whose decision is the subject matter of the

dispute”, and this exception was used by the Supreme

Court in Denel Propreitory Ltd. v. Govt. of India, Ministry of

Defence, AIR 2012 SC 817 and Bipromasz Bipron Trading

SA v. Bharat Electronics Ltd., (2012) 6 SCC 384, to

appoint an independent arbitrator under section 11, this is

not enough.

57. The balance between procedural fairness and binding

nature of these contracts, appears to have been tilted in

favour of the latter by the Supreme Court, and the

Commission believes the present position of law is far from

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satisfactory. Since the principles of impartiality and

independence cannot be discarded at any stage of the

proceedings, specifically at the stage of constitution of the

arbitral tribunal, it would be incongruous to say that party

autonomy can be exercised in complete disregard of these

principles – even if the same has been agreed prior to the

disputes having arisen between the parties. There are

certain minimum levels of independence and

impartiality that should be required of the arbitral

process regardless of the parties’ apparent agreement.

A sensible law cannot, for instance, permit

appointment of an arbitrator who is himself a party to

the dispute, or who is employed by (or similarly

dependent on) one party, even if this is what the

parties agreed. The Commission hastens to add that Mr.

PK Malhotra, the ex officio member of the Law

Commission suggested having an exception for the State,

and allow State parties to appoint employee arbitrators.

The Commission is of the opinion that, on this issue, there

cannot be any distinction between State and non-State

parties. The concept of party autonomy cannot be

stretched to a point where it negates the very basis of

having impartial and independent adjudicators for

resolution of disputes. In fact, when the party appointing

an adjudicator is the State, the duty to appoint an

impartial and independent adjudicator is that much

more onerous – and the right to natural justice cannot

be said to have been waived only on the basis of a

“prior” agreement between the parties at the time of

the contract and before arising of the disputes.

58. Large scale amendments have been suggested to

address this fundamental issue of neutrality of arbitrators,

which the Commission believes is critical to

the functioning of the arbitration process in India. In

particular, amendments have been proposed to sections

11, 12 and 14 of the Act.

59. The Commission has proposed the requirement of

having specific disclosures by the arbitrator, at the stage of

his possible appointment, regarding existence

of any relationship or interest of any kind which is likely to

give rise to justifiable doubts. The Commission has

proposed the incorporation of the Fourth Schedule,

which has drawn from the Red and Orange lists of the

IBA Guidelines on Conflicts of Interest in International

Arbitration, and which would be treated as a “guide”

to determine whether circumstances exist which give

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rise to such justifiable doubts. On the other hand, in

terms of the proposed section 12 (5) of the Act and the

Fifth Schedule which incorporates the categories from

the Red list of the IBA Guidelines (as above), the

person proposed to be appointed as an arbitrator shall

be ineligible to be so appointed, notwithstanding any

prior agreement to the contrary. In the event such an

ineligible person is purported to be appointed as an

arbitrator, he shall be de jure deemed to be unable to

perform his functions, in terms of the proposed explanation

to section 14. Therefore, while the disclosure is required

with respect to a broader list of categories (as set out in

the Fourth Schedule, and as based on the Red and

Orange lists of the IBA Guidelines), the ineligibility to be

appointed as an arbitrator (and the consequent de jure

inability to so act) follows from a smaller and more serious

sub-set of situations (as set out in the Fifth Schedule, and

as based on the Red list of the IBA Guidelines).

60. The Commission, however, feels that real and genuine

party autonomy must be respected, and, in certain

situations, parties should be allowed to waive even the

categories of ineligibility as set in the proposed Fifth

Schedule. This could be in situations of family arbitrations

or other arbitrations where a person commands the blind

faith and trust of the parties to the dispute, despite the

existence of objective “justifiable doubts” regarding his

independence and impartiality. To deal with such

situations, the Commission has proposed the proviso to

section 12 (5), where parties may, subsequent to disputes

having arisen between them, waive the applicability of the

proposed section 12 (5) by an express agreement in

writing. In all other cases, the general rule in the proposed

section 12 (5) must be followed. In the event the High

Court is approached in connection with appointment of an

arbitrator, the Commission has proposed seeking the

disclosure in terms of section 12 (1) and in which context

the High Court or the designate is to have “due regard” to

the contents of such disclosure in appointing the arbitrator.

”

16)We may put a note of clarification here. Though, the Law Commission

discussed the aforesaid aspect under the heading “Neutrality of

Arbitrators”, the focus of discussion was on impartiality and

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independence of the arbitrators which has relation to or bias towards one

of the parties. In the field of international arbitration, neutrality is

generally related to the nationality of the arbitrator. In international

sphere, the 'appearance of neutrality' is considered equally important,

which means that an arbitrator is neutral if his nationality is different from

that of the parties. However, that is not the aspect which is being

considered and the term 'neutrality' used is relatable to impartiality and

independence of the arbitrators, without any bias towards any of the

parties. In fact, the term 'neutrality of arbitrators' is commonly used in

this context as well.

17)Keeping in mind the afore-quoted recommendation of the Law

Commission, with which spirit, Section 12 has been amended by the

Amendment Act, 2015, it is manifest that the main purpose for amending

the provision was to provide for neutrality of arbitrators. In order to

achieve this, sub-section (5) of Section 12 lays down that

notwithstanding any prior agreement to the contrary, any person whose

relationship with the parties or counsel or the subject matter of the

dispute falls under any of the categories specified in the Seventh

Schedule, he shall be ineligible to be appointed as an arbitrator. In such

an eventuality, i.e., when the arbitration clause finds foul with the

amended provisions extracted above, the appointment of an arbitrator

would be beyond pale of the arbitration agreement, empowering the

21

court to appoint such arbitrator(s) as may be permissible. That would be

the effect of non-obstante clause contained in sub-section (5) of Section

12 and the other party cannot insist on appointment of the arbitrator in

terms of arbitration agreement.

18)We may mention here that there are number of judgments of this Court

even prior to the amendment of Section 12 where courts have appointed

the arbitrators, giving a go-by to the agreed arbitration clause in certain

contingencies and situations, having regards to the provisions of

unamended Section 11(8) of the Act which, inter alia, provided that while

appointing the arbitrator, Chief Justice, or the person or the institution

designated by him, shall have regard to the other conditions as are likely

to secure the appointment of an independent and impartial arbitrator.

See Datar Switchgears Ltd. v. Tata Finance Ltd. & Anr.

1

, Punj Lloyd Ltd.

v. Petronet MHB Ltd.

2

, Union of India v. Bharat Battery Manufacturing

Co. (P) Ltd.,

3

, Deep Trading Co. v. Indian Oil Corporation

4

, Union of India

v. Singh Builders Syndicate

5

and Northern Eastern Railway v. Tripple

Engineering Works

6

. Taking note of the aforesaid judgments, this Court

in Union of India and others v. Uttar Pradesh State Bridge Corporation

1

(2008) 8 SCC 151

2

(2006) 2 SCC 638

3

(2007) 7 SCC 684

4

(2013) 4 SCC 35

5

(2009) 4 SCC 523

6

(2014) 9 SCC 288

22

Limited

7

summed up the position in the following manner:

13. No doubt, ordinarily that would be the position. The

moot question, however, is as to whether such a course of

action has to be necessarily adopted by the High Court in

all cases, while dealing with an application under Section

11 of the Act or is there room for play in the joints and the

High Court is not divested of exercising discretion under

some circumstances? If yes, what are those

circumstances? It is this very aspect which was specifically

dealt with by this Court in Tripple Engg. Works [North

Eastern Railway v. Tripple Engg. Works, (2014) 9 SCC

288 : (2014) 5 SCC (Civ) 30]. Taking note of various

judgments, the Court pointed out that the notion that the

High Court was bound to appoint the arbitrator as per the

contract between the parties has seen a significant erosion

in recent past. In paras 6 and 7 of the said decision, those

judgments wherein departure from the aforesaid “classical

notion” has been made are taken note of. It would,

therefore, be useful to reproduce the said paragraph along

with paras 8 and 9 hereinbelow: (SCC pp. 291-93)

“6. The ‘classical notion’ that the High Court while

exercising its power under Section 11 of the

Arbitration and Conciliation Act, 1996 (hereinafter

for short ‘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 Petroleum Corpn. Ltd. [(2007) 5

SCC 304] , wherein this Court had taken the view

that though the contract 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 thereafter in Union of

India v. Bharat Battery Mfg. Co. (P) Ltd. [(2007) 7

SCC 684] wherein following a three-Judge Bench

decision in Punj Lloyd Ltd. v. Petronet MHB Ltd.

[Punj Lloyd Ltd. v. Petronet MHB Ltd., (2006) 2

SCC 638], it was held that once an aggrieved

party files an application under Section 11(6) of

the Act to the High Court, the opposite party

would lose its right of appointment 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.

7

(2015) 2 SCC 52

23

7. The apparent dichotomy in ACE Pipeline

[(2007) 5 SCC 304] and Bharat Battery Mfg. Co.

(P) Ltd. [(2007) 7 SCC 684] was reconciled by a

three-Judge Bench of this Court in Northern

Railway Admn., Ministry of Railway v. Patel Engg.

Co. Ltd. [Northern Railway Admn., Ministry of

Railway v. Patel Engg. Co. Ltd., (2008) 10 SCC

240] , wherein the jurisdiction of the High Court

under Section 11(6) of the Act was sought to be

emphasised by taking into account 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 the Act. The

position was further clarified in Indian Oil Corpn.

Ltd. v. Raja Transport (P) Ltd.[(2009) 8 SCC 520 :

(2009) 3 SCC (Civ) 460] Para 48 of the Report

wherein the scope of Section 11 of the Act was

summarised may be quoted by reproducing

sub-paras (vi) and (vii) hereinbelow: (Indian Oil

case [(2009) 8 SCC 520 : (2009) 3 SCC (Civ)

460] , SCC p. 537)

'48.(vi) The Chief Justice or his designate

while exercising 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 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.’

8. The above discussion will not be complete

without reference to the view of this Court

expressed in Union of India v. Singh Builders

Syndicate [Union of India v. Singh Builders

24

Syndicate, (2009) 4 SCC 523 : (2009) 2 SCC (Civ)

246] , wherein the appointment of a retired Judge

contrary to the agreement requiring appointment

of specified officers was held to be valid on the

ground that the arbitration proceedings had not

concluded for over a decade making a mockery of

the process. In fact, in para 25 of the Report in

Singh Builders Syndicate [Union of India v. Singh

Builders Syndicate, (2009) 4 SCC 523 : (2009) 2

SCC (Civ) 246] this Court had suggested that the

Government, statutory authorities and government

companies should consider phasing out arbitration

clauses providing for appointment of serving

officers and encourage professionalism in

arbitration.

9. A pronouncement of late in Deep Trading Co. v.

Indian Oil Corpn. [(2013) 4 SCC 35 : (2013) 2

SCC (Civ) 449] followed the legal position laid

down in Punj Lloyd Ltd. [Punj Lloyd Ltd. v.

Petronet MHB Ltd., (2006) 2 SCC 638] which in

turn had followed a two-Judge Bench decision in

Datar Switchgears Ltd. v. Tata Finance Ltd.

[(2000) 8 SCC 151] The theory of forfeiture of the

rights of a party under the agreement to appoint

its arbitrator once the proceedings under Section

11(6) of the Act had commenced came to be even

more formally embedded in Deep Trading Co.

[(2013) 4 SCC 35 : (2013) 2 SCC (Civ) 449]

subject, of course, to the provisions of Section

11(8), which provision in any event, had been held

in Northern Railway Admn. [Northern Railway

Admn., Ministry of Railway v. Patel Engg. Co. Ltd.,

(2008) 10 SCC 240] not to be mandatory, but only

embodying a requirement of keeping the same in

view at the time of exercise of jurisdiction under

Section 11(6) of the Act.”

(emphasis in original)

14. Speedy conclusion of arbitration proceedings hardly

needs to be emphasised. It would be of some interest to

note that in England also, Modern Arbitration Law on the

lines of UNCITRAL Model Law, came to be enacted in the

same year as the Indian law which is known as the English

Arbitration Act, 1996 and it became effective from

31-1-1997. It is treated as the most extensive statutory

25

reform of the English arbitration law. Commenting upon the

structure of this Act, Mustill and Boyd in their Commercial

Arbitration, 2001 companion volume to the 2nd Edn., have

commented that this Act is founded on four pillars. These

pillars are described as:

(a) The first pillar: Three general principles.

(b) The second pillar: The general duty of the Tribunal.

(c) The third pillar: The general duty of the parties.

(d) The fourth pillar: Mandatory and semi -mandatory

provisions.

Insofar as the first pillar is concerned, it contains three

general principles on which the entire edifice of the said

Act is structured. These principles are mentioned by an

English Court in its judgment in Deptt. of Economics,

Policy and Development of the City of Moscow v. Bankers

Trust Co. [2005 QB 207 : (2004) 3 WLR 533 : (2004) 4 All

ER 746 : 2004 EWCA Civ 314] In that case, Mance, L.J.

succinctly summed up the objective of this Act in the

following words: (QB p. 228, para 31)

“31. … Parliament has set out, in the Arbitration

Act, 1996, to encourage and facilitate a reformed

and more independent, as well as private and

confidential, system of consensual dispute

resolution, with only limited possibilities of court

involvement where necessary in the interests of

the public and of basic fairness.”

Section 1 of the Act sets forth the three main principles of

arbitration law viz. (i) speedy, inexpensive and fair trial by

an impartial tribunal; (ii) party autonomy; and (iii) minimum

court intervention. This provision has to be applied

purposively. In case of doubt as to the meaning of any

provision of this Act, regard should be had to these

principles.

15. In the book O.P. Malhotra on the Law and Practice of

Arbitration and Conciliation (3rd Edn. revised by Ms Indu

Malhotra), it is rightly observed that the Indian Arbitration

Act is also based on the aforesaid four foundational pillars.

26

16. First and paramount principle of the first pillar is “fair,

speedy and inexpensive trial by an Arbitral Tribunal”.

Unnecessary delay or expense would frustrate the very

purpose of arbitration. Interestingly, the second principle

which is recognised in the Act is the party autonomy in the

choice of procedure. This means that if a particular

procedure is prescribed in the arbitration agreement which

the parties have agreed to, that has to be generally

resorted to. It is because of this reason, as a normal

practice, the court will insist the parties to adhere to the

procedure to which they have agreed upon. This would

apply even while making the appointment of substitute

arbitrator and the general rule is that such an appointment

of a substitute arbitrator should also be done in

accordance with the provisions of the original agreement

applicable to the appointment of the arbitrator at the initial

stage. [See Yashwith Constructions (P) Ltd. v. Simplex

Concrete Piles India Ltd. [(2006) 6 SCC 204] However, this

principle of party autonomy in the choice of procedure has

been deviated from in those cases where one of the

parties have committed default by not acting in accordance

with the procedure prescribed. Many such instances where

this course of action is taken and the Court appoint the

arbitrator when the persona designata has failed to act,

are taken note of in paras 6 and 7 of Tripple Engg. Works

[North Eastern Railway v. Tripple Engg. Works, (2014) 9

SCC 288 : (2014) 5 SCC (Civ) 30] . We are conscious of

the fact that these were the cases where appointment of

the independent arbitrator made by the Court in exercise

of powers under Section 11 of account of “default

procedure”. We are, in the present case, concerned with

the constitution of substitute Arbitral Tribunal where earlier

Arbitral Tribunal has failed to perform. However, the above

principle of default procedure is extended by this Court in

such cases as well as is clear from the judgment in Singh

Builders Syndicate [Union of India v. Singh Builders

Syndicate, (2009) 4 SCC 523 : (2009) 2 SCC (Civ) 246].

17. In the case of contracts between government

corporations/State-owned companies with private

parties/contractors, the terms of the agreement are usually

drawn by the government company or public sector

undertakings. Government contracts have broadly two

kinds of arbitration clauses, first where a named officer is

to act as sole arbitrator; and second, where a senior officer

like a Managing Director, nominates a designated officer to

act as the sole arbitrator. No doubt, such clauses which

27

give the Government a dominant position to constitute the

Arbitral Tribunal are held to be valid. At the same time, it

also casts an onerous and responsible duty upon the

persona designata to appoint such persons/officers as the

arbitrators who are not only able to function independently

and impartially, but are in a position to devote adequate

time in conducting the arbitration. If the Government has

nominated those officers as arbitrators who are not able to

devote time to the arbitration proceedings or become

incapable of acting as arbitrators because of frequent

transfers, etc., then the principle of “default procedure” at

least in the cases where Government has assumed the

role of appointment of arbitrators to itself, has to be applied

in the case of substitute arbitrators as well and the Court

will step in to appoint the arbitrator by keeping aside the

procedure which is agreed to between the parties.

However, it will depend upon the facts of a particular case

as to whether such a course of action should be taken or

not. What we emphasise is that Court is not powerless in

this regard.”

19)Independence and impartiality of the arbitrator are the hallmarks of any

arbitration proceedings. Rule against bias is one of the fundamental

principles of natural justice which applied to all judicial and quasi judicial

proceedings. It is for this reason that notwithstanding the fact that

relationship between the parties to the arbitration and the arbitrators

themselves are contractual in nature and the source of an arbitrator's

appointment is deduced from the agreement entered into between the

parties, notwithstanding the same non-independence and

non-impartiality of such arbitrator (though contractually agreed upon)

would render him ineligible to conduct the arbitration. The genesis

behind this rational is that even when an arbitrator is appointed in terms

of contract and by the parties to the contract, he is independent of the

28

parties. Functions and duties require him to rise above the partisan

interest of the parties and not to act in, or so as to further, the particular

interest of either parties. After all, the arbitrator has adjudicatory role to

perform and, therefore, he must be independent of parties as well as

impartial. The United Kingdom Supreme Court has beautifully

highlighted this aspect in Jivraj v. Hashwani

8

in the following words:

“the dominant purpose of appointing an arbitrator is the

impartial resolution of dispute between the parties in

accordance with the terms of the agreement and, although

the contract between the parties and the arbitrators would

be a contract for the provision of personal services, they

were not personal services under the direction of the

parties.”

20) Similarly, Cour de cassation, France, in a judgment delivered in 1972 in

the case of Consorts Ury

9

, underlined that “an independent mind is

indispensable in the exercise of judicial power, whatever the source of

that power may be, and it is one of the essential qualities of an

arbitrator.”

21)Independence and impartiality are two different concepts. An arbitrator

may be independent and yet, lack impartiality, or vice versa. Impartiality,

as is well accepted, is a more subjective concept as compared to

independence. Independence, which is more an objective concept, may,

thus, be more straightforwardly ascertained by the parties at the outset

8

(2011) UKSC 40,

9

FOUCHARD, GAILLARD, GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION 575

(Emmanuel Gaillard & John Savage eds., 1999) (quoting Cour de cassation [Cass.] [supreme court for

judicial matters] 2e civ., Apr. 13, 1972, JCP 1972, II, 17189 (Fr.)).

29

of the arbitration proceedings in light of the circumstances disclosed by

the arbitrator, while partiality will more likely surface during the arbitration

proceedings.

22)It also cannot be denied that the Seventh Schedule is based on IBA

guidelines which are clearly regarded as a representation of international

based practices and are based on statutes, case law and juristic opinion

from a cross-section on jurisdiction. It is so mentioned in the guidelines

itself.

23)Keeping in view the aforesaid parameters, we advert to the facts of this

case. Various contingencies mentioned in the Seventh Schedule render

a person ineligible to act as an arbitrator. Entry no. 1 is highlighted by

the learned counsel for the petitioner which provides that where the

arbitrator is an employee, consultant, advisor or has any other past or

present business relationship with the party, would not act as an

arbitrator. What was argued by the learned senior counsel for the

petitioner was that the panel of arbitrators drawn by the respondent

consists of those persons who are government employees or

ex-government employees. However, that by itself may not make such

persons ineligible as the panel indicates that these are the persons who

have worked in the railways under the Central Government or Central

Public Works Department or public sector undertakings. They cannot be

30

treated as employee or consultant or advisor of the respondent – DMRC.

If this contention of the petitioner is accepted, then no person who had

earlier worked in any capacity with the Central Government or other

autonomous or public sector undertakings, would be eligible to act as an

arbitrator even when he is not even remotely connected with the party in

question, like DMRC in this case. The amended provision puts an

embargo on a person to act as an arbitrator, who is the employee of the

party to the dispute. It also deprives a person to act as an arbitrator if he

had been the consultant or the advisor or had any past or present

business relationship with DMRC. No such case is made out by the

petitioner.

24)Section 12 has been amended with the objective to induce neutrality of

arbitrators, viz., their independence and impartiality. The amended

provision is enacted to identify the 'circumstances' which give rise to

'justifiable doubts' about the independence or impartiality of the

arbitrator. If any of those circumstances as mentioned therein exists, it

will give rise to justifiable apprehension of bias. The Fifth Schedule to

the Act enumerates the grounds which may give rise to justifiable doubts

of this nature. Likewise, Seventh Schedule mentions those

circumstances which would attract the provisions of sub-section (5) of

Section 12 and nullify any prior agreement to the contrary. In the context

of this case, it is relevant to mention that only if an arbitrator is an

31

employee, a consultant, an advisor or has any past or present business

relationship with a party, he is rendered ineligible to act as an arbitrator.

Likewise, that person is treated as incompetent to perform the role of

arbitrator, who is a manager, director or part of the management or has a

single controlling influence in an affiliate of one of the parties if the

affiliate is directly involved in the matters in dispute in the arbitration.

Likewise, persons who regularly advised the appointing party or affiliate

of the appointing party are incapacitated. A comprehensive list is

enumerated in Schedule 5 and Schedule 7 and admittedly the persons

empaneled by the respondent are not covered by any of the items in the

said list.

25)It cannot be said that simply because the person is retired officer who

retired from the government or other statutory corporation or public

sector undertaking and had no connection with DMRC (party in dispute),

he would be treated as ineligible to act as an arbitrator. Had this been

the intention of the legislature, the Seventh Schedule would have

covered such persons as well. Bias or even real likelihood of bias cannot

be attributed to such highly qualified and experienced persons, simply on

the ground that they served the Central Government or PSUs, even

when they had no connection with DMRC. The very reason for

empaneling these persons is to ensure that technical aspects of the

dispute are suitably resolved by utilising their expertise when they act as

32

arbitrators. It may also be mentioned herein that the Law Commission

had proposed the incorporation of the Schedule which was drawn from

the red and orange list of IBA guidelines on conflict of interest in

international arbitration with the observation that the same would be

treated as the guide 'to determine whether circumstances exist which

give rise to such justifiable doubts'. Such persons do not get covered by

red or orange list of IBA guidelines either.

26)As already noted above, DMRC has now forwarded the list of all 31

persons on its panel thereby giving a very wide choice to the petitioner to

nominate its arbitrator. They are not the employees or ex-employees or

in any way related to the DMRC. In any case, the persons who are

ultimately picked up as arbitrators will have to disclose their interest in

terms of amended provisions of Section 12 of the Act. We, therefore, do

not find it to be a fit case for exercising our jurisdiction to appoint and

constitute the arbitral tribunal.

27)Before we part with, we deem it necessary to make certain comments on

the procedure contained in the arbitration agreement for constituting the

arbitral tribunal. Even when there are number of persons empaneled,

discretion is with the DMRC to pick five persons therefrom and forward

their names to the other side which is to select one of these five persons

as its nominee (Though in this case, it is now done away with). Not only

33

this, the DMRC is also to nominate its arbitrator from the said list. Above

all, the two arbitrators have also limited choice of picking upon the third

arbitrator from the very same list, i.e., from remaining three persons.

This procedure has two adverse consequences. In the first place, the

choice given to the opposite party is limited as it has to choose one out

of the five names that are forwarded by the other side. There is no free

choice to nominate a person out of the entire panel prepared by the

DMRC. Secondly, with the discretion given to the DMRC to choose five

persons, a room for suspicion is created in the mind of the other side

that the DMRC may have picked up its own favourites. Such a situation

has to be countenanced. We are, therefore, of the opinion that

sub-clauses (b) & (c) of clause 9.2 of SCC need to be deleted and

instead choice should be given to the parties to nominate any person

from the entire panel of arbitrators. Likewise, the two arbitrators

nominated by the parties should be given full freedom to choose third

arbitrator from the whole panel.

28)Some comments are also needed on the clause 9.2(a) of the GCC/SCC,

as per which the DMRC prepares the panel of 'serving or retired

engineers of government departments or public sector undertakings'. It

is not understood as to why the panel has to be limited to the aforesaid

category of persons. Keeping in view the spirit of the amended provision

and in order to instil confidence in the mind of the other party, it is

34

imperative that panel should be broad based. Apart from serving or

retired engineers of government departments and public sector

undertakings, engineers of prominence and high repute from private

sector should also be included. Likewise panel should comprise of

persons with legal background like judges and lawyers of repute as it is

not necessary that all disputes that arise, would be of technical nature.

There can be disputes involving purely or substantially legal issues, that

too, complicated in nature. Likewise, some disputes may have the

dimension of accountancy etc. Therefore, it would also be appropriate

to include persons from this field as well.

29)Time has come to send positive signals to the international business

community, in order to create healthy arbitration environment and

conducive arbitration culture in this country. Further, as highlighted by

the Law Commission also in its report, duty becomes more onerous in

Government contracts, where one of the parties to dispute is the

Government or public sector undertaking itself and the authority to

appoint the arbitrator rests with it. In the instant case also, though

choice is given by DMRC to the opposite party but it is limited to choose

an arbitrator from the panel prepared by the DMRC. It, therefore,

becomes imperative to have a much broad based panel, so that there is

no misapprehension that principle of impartiality and independence

would be discarded at any stage of the proceedings, specially at the

35

stage of constitution of the arbitral tribunal. We, therefore, direct that

DMRC shall prepare a broad based panel on the aforesaid lines, within a

period of two months from today.

30)Subject to the above, insofar as present petition is concerned, we

dismiss the same, giving two weeks' time to the petitioner to nominate its

arbitrator from the list of 31 arbitrators given by the respondent to the

petitioner.

No costs.

.............................................J.

(A.K. SIKRI)

.............................................J.

(R.K. AGRAWAL)

NEW DELHI;

FEBRUARY 10, 2017.

36

ITEM NO.1B COURT NO.8 SECTION XVIA

(FOR JUDGMENT)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Arbitration Case (Civil) No(s). 50/2016

M/S VOESTALPINE SCHIENEN GMBH Petitioner(s)

VERSUS

DELHI METRO RAIL CORPORATION LTD Respondent(s)

Date : 10/02/2017 This petition was called on for pronouncement of

judgment today.

For Petitioner(s) Mr. Gopal Jain, Sr. Adv.

Ms. Vanita Bhargava, Adv.

Mr. Ajay Bhargava, Adv.

Mr. Jeevan B. Panda, Adv.

Ms. Kudarat Dev, Adv.

For M/s. Khaitan & Co.

For Respondent(s) Mr. Mukul Rohtagi, AG

Ms. Shashi Kiran,Adv.

Mr. Abhiuday Chandra, Adv.

Hon'ble Mr. Justice A.K. Sikri pronounced the judgment of the

Bench comprising His Lordship and Hon'ble Mr. Justice R.K. Agrawal.

The petition is dismissed in terms of the signed reportable

judgment.

Pending application(s), if any, stands disposed of

accordingly.

(Ashwani Thakur) (Mala Kumari Sharma )

COURT MASTER COURT MASTER

(Signed reportable judgment is placed on the file)