M/S Oasis Projects Ltd v. Managing Director, National Highway and Infrastructure Development Corporation Limited

NAVIN CHAWLA, J. FEBRUARY 07, 2023/rv/Ais

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:25.01.2023 Date of decision:07.02.2023 + M/S OASIS PROJECTS LTD ..... Petitioner Through: Mr. Bharat Chugh & Mr. Siddharth Shiva Kumar, Advs. versus MANAGING DIRECTOR, NATIONAL HIGHWAY AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED ..... Respondent Through: Mr. Debal Kumar Banerjee, Sr. Adv. with Mr. Dharmender Verma & Mr. Vishal Singh, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the "Act") seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the "Balance work for Four-Laning of NH-39 Dimapur-Kohima Road from Design 152.490 to Km. 166.700 (Existing Km 156.000 to Km. 172.900), in the State of Nagaland under SARDP-NE through an Engineering, Procurement and Construction (EPC) Contract (Package -III)" (hereinafter referred to as the "Contract"). 2. The Arbitration Agreement between the parties is contained in Article 26 of the Agreement, which is reproduced hereinunder:- "Article 26 Dispute Resolution 26.1 Dispute Resolution (i) Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other Party (the "Dispute") shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 26.2. (ii) The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute. 26.2 Conciliation In the event of any Dispute between the Parties, either Party may call upon the Authority's Engineer, or such other person as the Parties may mutually agree upon (the "Conciliator") to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Conciliator or without the intervention of the Conciliator, either Party may require such Dispute to be referred to the Chairman of the Authority and the Chairman of the Board of Directors of the Contractor for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) business days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 30 (thirty) business day period or the Dispute is not amicably settled within 30 (thirty) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 26.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 26.3 but before resorting to such arbitration, the parties agree to explore conciliation by the Conciliation Committees of Independent Experts set up by the Authority in accordance with the procedure decided by the panel of such experts and notified by the Authority on its website including its subsequent amendments. In the event of the conciliation proceedings being successful, the parties to the dispute would sign the written settlement agreement and the conciliators would authenticate the same. Such settlement agreement would then be binding on the parties in terms of Section 73 of the Arbitration Act. In case of failure of the conciliation process even at the level of the Conciliation Committee, either party may refer the Dispute to arbitration in accordance with the provisions of Clause 26.3. 26.3 Arbitration (i) Any dispute which remains unresolved between the parties t