Petition under Section 11(6) of A&C Act dismissed as petitioner itself failed to follow the procedure prescribed in Arbitration Agreement  

Delhi High Court: A Single Judge Bench comprising of Navin Chawla, J., dismissed a petition filed under Section 11(6) of Arbitration and Conciliation Act, 1996 seeking appointment of a sole arbitrator for adjudication of the dispute between the parties.

The dispute arose in relation to a contract executed between the petitioner and the respondents for construction of EWS houses. Arbitration Agreement between the parties was contained in Clause 25 of the said contract, which not only provided for hierarchical manner of adjudication of claims raised by the contractor but also gave a specific timeline for the decision of each authority. The primary contention raised on behalf of the respondents was that the petition was not maintainable in as much as the petitioner did not follow the procedure prescribed in the Agreement before filing of the present petition.

In order to appreciate the submissions of the respondents, the High Court perused the Arbitration Agreement. On reading the sequence of events, the Court noted that the procedure as prescribed in Clause 25 was not followed by the petitioner. It was observed that Section 11(6) comes into play only where the other party fails to act as required under the procedure. The High Court was of the view that the petitioner, itself, having not followed the procedure as prescribed in the Arbitration Agreement, cannot make a complaint against respondents’ alleged failure to act in accordance with the same. In the facts and circumstances of the present case, it was held that the petition was liable to be dismissed as the petitioner itself failed to follow the procedure defined in the Arbitration Agreement. The order was made accordingly. [Ved Prakash Mithal and Sons v. DDA,  2018 SCC OnLine Del 9884, dated 10-07-2018]

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