# Gedpec Infratech Ltd v. U.P. Power Transmission Corporation Ltd., Lucknow

- **Citation:** (2024) 3 ILRA 175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** Civil Misc. Arbitration Application No. 91 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gedpec-infratech-ltd-v-u-p-power-transmission-corporation-ltd-lucknow-51609
- **Pages:** 7

## Headnote

Law
-
Arbitration
and
Conciliation Act, 1996 - Sections 11(6),
11(8) & 12 - Fifth Schedule - Item 24 -
Appointment of Arbitrator - Applicant sought
appointment of arbitrator under Section 11(6)
for disputes arising from three agreements
dated 30.06.2017 with respondent - Held,
respondent's objection to proposed arbitrator
(Hon'ble Mr. Justice VSC. Gupta) based on Item
24 of Fifth Schedule (arbitrator serving in
another arbitration involving respondent within
past three years) untenable - Item 24 requires
the other arbitration to involve a related issue or
arbitrator's affiliation with a party, neither
established by respondent - HRD Corporation
Vs GAIL (India) Limited followed, clarifying that
Item 24 disqualification is not absolute and
requires specific relationship or involvement,
absent here - No evidence of arbitrator's lack of
independence or impartiality - Hon'ble Mr.
Justice VSC. Gupta appointed as arbitrator,
respondent granted liberty to raise objections
before
arbitrator
if
legally
permissible
-
Application disposed of. (Para 11-18)

Application disposed of.

List of Cases Cited:

## Text

3 All. Gedpec Infratech Ltd. Vs. U.P. Power Transmission Corporation Ltd., Lucknow
175
Arunendra @ Daddu Yadav is similar to
role of accused Moolchandra Yadav who is
already facing trial. Hence, this Court is of
the view that the evidence which has come
on record against the revisionist are much
more than prima facie and are sufficient to
proceed against the revisionist in exercise
of power under Section 319 Cr.P.C. and for
framing of charge.

15-In view of above, it can safely be
held that the learned Additional Sessions
Judge while passing the impugned order
dated 31.10.2023 was fully satisfied that
there are strong and cogent evidence
against the revisionist which is sufficient
for framing of charge and has not passed
the order in a casual manner.

16-The order passed by the learned
Additional Sessions Judge is in consonance
with the law laid down by Hon'ble
Supreme Court in Sukhpal Singh Khaira
and Hardeep Singh (Supra) and it cannot
be said that the order of the learned
Additional Sessions Judge is in the teeth of
the order of Hon'ble Supreme Court
referred to above.

17-In view of what has been indicated
herein above, I do not find any illegality or
irregularity in the order date 31.10.2023
passed by learned Additional Sessions
Judge/Special
Judge
MP/MLA
Court,
Prayagraj summoning the revisionist under
Section 319 Cr.P.C. to face the trial under
Sections 147, 148, 302/149, 323/149, 504
and 506 IPC along with other accused.

18-The Criminal Revision is bereft of
merit. It is accordingly rejected.
----------
(2024) 3 ILRA 175
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Civil Misc. Arbitration Application No. 91 of 2023

Gedpec Infratech Ltd. ...Applicant
Versus
U.P. Power Transmission Corporation Ltd.,
Lucknow ...Opposite Party

Counsel for the Applicant:
Vishnu Pratap Singh, Awaneesh Yadav

Counsel for the Opposite Party:
Puneet Chandra

Arbitration
Law
-
Arbitration
and
Conciliation Act, 1996 - Sections 11(6),
11(8) & 12 - Fifth Schedule - Item 24 -
Appointment of Arbitrator - Applicant sought
appointment of arbitrator under Section 11(6)
for disputes arising from three agreements
dated 30.06.2017 with respondent - Held,
respondent's objection to proposed arbitrator
(Hon'ble Mr. Justice VSC. Gupta) based on Item
24 of Fifth Schedule (arbitrator serving in
another arbitration involving respondent within
past three years) untenable - Item 24 requires
the other arbitration to involve a related issue or
arbitrator's affiliation with a party, neither
established by respondent - HRD Corporation
Vs GAIL (India) Limited followed, clarifying that
Item 24 disqualification is not absolute and
requires specific relationship or involvement,
absent here - No evidence of arbitrator's lack of
independence or impartiality - Hon'ble Mr.
Justice VSC. Gupta appointed as arbitrator,
respondent granted liberty to raise objections
before
arbitrator
if
legally
permissible
-
Application disposed of. (Para 11-18)

Application disposed of.

List of Cases Cited:

1. HRD Corporation (Marcus Oil and Chemical
Division) Vs GAIL (India) Limited; (2018) 12
SCC 471
176 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Syed Tamjeed Ahmad,
learned counsel for the applicant and Sri
Puneet Chandra, learned counsel for the
respondent.

2. This Court, by means of the order
dated 07.02.2023, proposed the name of
Hon'ble Mr. Justice V.C.Gupta(Former
Judge of this Court) as Arbitrator to settle
the dispute between the parties. The order
dated 07.02.2023, on reproduction, reads as
under:-

"Heard
Sri Awaneesh Yadav
learned counsel for the applicant and Sri
Puneet Chandra learned counsel for the
respondent.

This Court has passed following
order on 12.12.2023:-

"Heard
Shri
Syed
Tamjeet
Ahmad, learned counsel for the petitioner.
Shri Puneet Chandra, learned counsel has
accepted
notice
on
behalf
of
the
respondent.

The instant petition has been
preferred under Section 11(6) of the
Arbitration and Conciliation Act, 1996 for
seeking appointment of a sole Arbitrator.

The submission of the learned
counsel for the petitioner is that three
separate agreements were entered between
the parties. All the three agreements
between the parties are dated 30.06.2017.
Each of the agreement has an identical
arbitration clause.

It is further urged that the first
agreement relates to supply of equipment
and material for construction of 400kV Sub
Station at Jaunpur. The second agreement
of the same date relates to the erection,
testing, commissioning, operation and
maintenance for two years of 400kV Sub
Station at Jaunpur whereas the third
agreement relates to civil works for
construction of 400kV Sub Station at
Jaunpur. Accordingly, it is submitted that
all the three contracts are part of one
composite project which was to be
completed by the petitioner under the three
separate heads.

It is further urged that during the
course of subsistence of the agreements,
certain disputes arose between the parties
and the petitioner by means of its notice
dated 27.09.2023 by making a reference to
all the three contracts invoked the
arbitration clause.

It is further submitted that as per
Clause 38 of the agreement which
contained an arbitration clause it provided
that any dispute arose between the parties
was to be referred to the Chairman of the
respondent Corporation, however, in light
of the provisions contained in Section 12(5)
of the Act of 1996 duly amended in the year
2015 it is now not open for the respondent
to
either
arbitrate
or
nominate
an
arbitrator.

In the given circumstances, the
petitioner had requested the respondent to
cooperate in an early constitution of
Arbitral Tribunal, however, despite the
notice dated 27.09.2023 having been
served on the respondent, there was no
response, hence, the petition.

Shri Puneet Chandra, learned
counsel for the respondent on the other
hand submitted that though he requires
time to file his response as he wishes to
raise a preliminary objection to the effect
that since there are three separate
agreements which have given rise to three
separate cause of action, hence, one single
petition raising the disputes as well as one
composite notice dated 27.09.2023 both are
not valid, apart from the fact that the
3 All. Gedpec Infratech Ltd. Vs. U.P. Power Transmission Corporation Ltd., Lucknow
177
agreements also provide for the jurisdiction
at Allahabad.

Let the response be filed by the
respondent within two weeks from today
with an advance copy to the learned
counsel for the petitioner, who if may so
choose, may file his response within one
week thereafter.

Since,
the
respondent
Corporation is represented through its
counsel, hence, no fresh notice is required.

List this matter on 12.01.2024. "

Learned
counsel
for
the
respondent, on the basis of instructions
submits that respondent does not want to
file any objection and since there is dispute,
therefore, Arbitrator may be appointed.

Having
considered
the
submissions of the learned counsel for the
parties there appears to be some arbitral
dispute between the parties and if the same
is resolved through Arbitrator appointed by
this Court in terms of Clause 25 of Section
8 of the agreement none of the parties are
going to be prejudiced.

Accordingly the Court proposes
to appoint Hon'ble Mr.Justice V.C.Gupta,
House No.D-862, Omex City, Raebareli
Road,
Lucknow
(U.P.)
Mobile
No.8004928897 as Arbitrator to settle the
dispute between the parties.

Let a copy of the pleadings on
record alongwith the relevant provisions of
the amending Act 2015 be sent to Hon'ble
Mr.Justice V.C.Gupta, House No.D-862,
Omex City, Raebareli Road, Lucknow
(U.P.) Mobile No.8004928897 for eliciting
his disclosure in terms of Section 11(8) read
with Section 12(1) of the Act, 1996 and
Schedule VI and VII as amended by Act
2015, appended thereto, as also his consent
for appointment as an Arbitrator for
resolving the dispute.

Learned counsel for the applicant
shall supply an additional copy of the
application to the office for the said
purpose within a week.

List
after
receipt
of
reply/consent."

3. In deference to the aforesaid order,
Hon'ble Mr. Justice V.C.Gupta(Former
Judge of this Court) has sent his consent
through
letter
dated
19.02.2024
in
accordance with law.

4. Learned counsel for the respondent
submits that since Hon'ble Mr. Justice V.C.
Gupta(Former Judge of this Court) is
conducting an arbitration between the
respondent-U.P.
Power
Transmission
Corporation Ltd. and SEW Infrastructure
Ltd. after being appointed as an arbitrator
by means of the order dated 27.09.2023 by
this Court in Civil Misc. Arbitration
Application No.40 of 2023 and he has also
issued notices on 11.10.2023,therefore, as
per Item 24 of the Fifth Schedule of the
Arbitration
and
Conciliation
Act,1996(here-in-after referred to as the
Act of 1996), he may not be appointed as
an arbitrator as it gives rise to justifiable
doubts
as
to
his
independence
or
impartiality.
He
relies
on
HRD
Corporation (Marcus Oil and Chemical
Division) Versus GAIL(India) Limited;
(2018)12 SCC 471.

5. Per contra, learned counsel for the
applicant submits that contention of
learned counsel for the respondent is misconceived and not tenable for the reason
that he has failed to indicate that the
proposed arbitrator was or is related in
any manner with one of the parties on the
issue involved in this case in the other
arbitration or he is affiliate of one of the
parties. He further submits that he has no
objection in appointment of the proposed
arbitrator.
178 INDIAN LAW REPORTS ALLAHABAD SERIES

6. I considered the submissions of
learned counsel for the parties and gone
through the records.

7. Section 11 of the Act of 1996
provides the appointment of arbitrators.
Sub-section (6) of Section 11 of the Act of
1996 provides the appointment of the
arbitrator by the High Court, in case the
parties fails to act as required under the
procedure of appointment agreed upon by
the parties. Sub-section (8) of Section 11
provides that the arbitral institution referred
to in sub-sections (4), (5) and (6) before
appointing the arbitrator, shall seek a
disclosure in writing from the prospective
arbitrator in terms of sub-section (1) of
section 12. Sub-section (8) of Section 11 is
extracted hereinbelow:-

(8) The Supreme Court or, as the
case may be, the High Court or the person
or institution designated by such Court,
before appointing an arbitrator, shall seek
a disclosure in writing from the prospective
arbitrator in terms of sub-section (1) of
section 12, and have due regard to-

(a) any qualifications required for
the arbitrator by the agreement of the
parties; and

(b) the contents of the disclosure
and other considerations as are likely to
secure the appointment of an independent
and impartial arbitrator.]"

8. Section 12 of the Act of 1996
provides that the proposed arbitrator shall
disclose in writing any circumstances as
disclosed therein with reference to Fifth
Schedule of the Act of 1996 in regard to his
independence and impartiality etc. Section
12 is extracted herein-below:-

12. Grounds for challenge.

[(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;

(b) which are likely to affect his
ability to devote sufficient time to the
arbitration and in particular his ability to
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.]

(3)
An
arbitrator
may
be
challenged only if-

(a) circumstances exist that give
rise to justifiable doubts as to his
independence or impartiality, or

(b) he does not possess the
qualifications agreed to by the parties.

(4) A party may challenge an
arbitrator appointed by him, or in whose
appointment he has participated, only for
reasons of which he becomes aware after
the appointment has been made.

[(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:
3 All. Gedpec Infratech Ltd. Vs. U.P. Power Transmission Corporation Ltd., Lucknow
179

Provided
that
parties
may,
subsequent to disputes having arisen
between them, waive the applicability of
this sub-section by an express agreement in
writing.]

9. The Fifth Schedule of the Act of
1996 provides the grounds which give rise
to justifiable doubts as to the independence
or impartiality of arbitrators.

10. Item No.24 of the Fifth Schedule
of the Act of 1996, on the basis of which,
objection has been raised by learned
counsel for the respondent for appointment
of the proposed arbitrator is extracted
herein-below;

"24. The arbitrator currently
serves, or has served within the past three
years, as arbitrator in another arbitration
on a related issue involving one of the
parties or an affiliate of one of the parties."

11. In view of the aforesaid Item 24 of
Fifth Schedule, doubt in regard to the
independence
or
impartiality
of
an
arbitrator can be raised if an arbitrator
currently serves or has served within the
past three years, as arbitrator in another
arbitration on a related issued involving
one of the parties or he is an affiliate of one
of the parties. Therefore if an arbitrator is
currently serving or has served in the past
three years as an arbitrator on the related
issue involving one of the parties, on which
the arbitration is to be held in the present
case or if he is affiliate to one of the parties,
it may be a ground to give rise to his
independence or impartiality. Thus it
cannot be conclusive ground of doubt of his
independence or impartiality.

12. Item No.1 to14 and 30 and 31 of
the Fifth Schedule of the Act of 1996
provides the grounds which may give rise
to justifiable doubts of independence or
impartiality of arbitrator on the ground of
his relationship with the parties or counsel.
Item No.15 and 16 of the Fifth Schedule
provides that the arbitrator can be said to be
related to the dispute if he has given legal
advise or provided an expert opinion on the
dispute to a party or an affiliate of one of
the parties or he has previous involvement
in the case. The circumstances have been
given in Item No.1 to 14 and 30 and 31 of
the Fifth Schedule in which the arbitrator
can be said to be affiliate to one of the
parties, such as, if he is an employee,
consultant, advisor or has any other past or
present business relationship with a party
or currently he represents or advises one of
the parties or an affiliate of one of the
parties etc.

13.

Learned
counsel
for
the
respondent has failed to indicate any such
circumstance, in terms of the aforesaid
provisions, on account of which it may be
said that the proposed arbitrator is serving
as an arbitrator on a related issue with one
of
the
parties
i.e.
the
respondent
Corporation in the other arbitration or he is
his affiliate. It is also very strange that
objection has been raised by learned
counsel for the respondent on the basis of
Item No.24 without disclosing relationship
of
respondent
corporation
with
the
proposed arbitrator except that he is
arbitrator in the other arbitration, which
may be a disqualification for appointment
of the proposed arbitrator in the present
matter.

14. In view of above, without
disclosing as to how he can say that the
arbitrator is related to the issue with one of
the parties in the other arbitration, in which
the respondent corporation itself is a party,
180 INDIAN LAW REPORTS ALLAHABAD SERIES
when he fairly admits, on a query being put
to him, that the other arbitration is on
separate issue or as to how the proposed
arbitrator is an affiliate of the respondentcorporation,
without
disclosing
the
relationship, in terms of the Fifth Schedule
of the Act of 1996, the contention of
learned counsel for the respondent is
misconceived and not tenable.

15. The Hon'ble Supreme Court, in
the case of HRD Corporation (Marcus
Oil and Chemical Division) versus
GAIL(India) Limited(supra), has held that
the disqualification contained in Items 22
and 24 is not absolute The relevant
paragraph 24 is extracted hereinbelow:-

"24. On reading the aforesaid
guideline and reading the heading which
appears with Item 16, namely "Relationship
of the arbitrator to the dispute", it is
obvious that the arbitrator has to have a
previous involvement in the very dispute
contained in the present arbitration.
Admittedly, Justice Doabia has no such
involvement. Further, Item 16 must be read
along with Items 22 and 24 of the Fifth
Schedule. The disqualification contained in
Items 22 and 24 is not absolute, as an
arbitrator who has, within the past three
years, been appointed as arbitrator on two
or more occasions by one of the parties or
an affiliate, may yet not be disqualified on
his showing that he was independent and
impartial on the earlier two occasions.
Also, if he currently serves or has served
within the past three years as arbitrator in
another arbitration on a related issue, he
may be disqualified under Item 24, which
must then be contrasted with Item 16. Item
16 cannot be read as including previous
involvements in another arbitration on a
related issue involving one of the parties as
otherwise Item 24 will be rendered largely
ineffective. It must not be forgotten that
Item 16 also appears in the Fifth Schedule
and has, therefore, to be harmoniously read
with Item 24. It has also been argued by
learned counsel appearing on behalf of the
respondent
that
the
expression
"the
arbitrator" in Item 16 cannot possibly
mean "the arbitrator" acting as an
arbitrator, but must mean that the proposed
arbitrator is a person who has had
previous involvement in the case in some
other avatar. According to us, this is a
sound argument as "the arbitrator" refers
to the proposed arbitrator. This becomes
clear, when contrasted with Items 22 and
24, where the arbitrator must have served
"as
arbitrator"
before
he
can
be
disqualified. Obviously, Item 16 refers to
previous involvement in an advisory or
other capacity in the very dispute, but not
as arbitrator. It 32 was also faintly argued
that Justice Doabia was ineligible under
Items 1 and 15. Appointment as an
arbitrator is not a "business relationship"
with the respondent under Item 1. Nor is
the delivery of an award providing an
expert "opinion" i.e. advice to a party
covered by Item 15".

16. In view of above and considering
the overall facts and circumstances of the
case, this Court is of the view that the
objection raised by learned counsel for the
respondent is totally misconceived and not
tenable and liable to be repelled, which is
accordingly repelled.

17. At this stage, learned counsel for
the respondent submits that he may be
granted liberty to raise the issue before the
arbitrator, for which no liberty is required
and if he is entitled to raise objection in
accordance with law and advised so, he
may raise and the same may be considered
by the arbitrator in accordance with law.
3 All. M/S Deep Distributors Pvt. Ltd. Vs. Tigers Brewery Industries Pvt. Ltd.
181

18. In view of above, Hon'ble
Mr.Justice V.C.Gupta(Former Judge of this
Court), House No.D-862, Omex City,
Raebareli Road, Lucknow (U.P.) Mobile
No.8004928897, is hereby appointed as an
Arbitrator to decide the dispute between the
parties herein.

19. The application is, accordingly,
disposed of.

20. Let a copy of this order be
communicated
forthwith
to
Hon'ble
Mr.Justice V.C.Gupta, House No.D-862,
Omex City, Raebareli Road, Lucknow
(U.P.) Mobile No.8004928897.
----------
(2024) 3 ILRA 181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.03.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Civil Misc. Arbitration Application No. 100 of
2023

M/S Deep Distributors Pvt. Ltd.
 ...Applicant
Versus
Tigers Brewery Industries Pvt. Ltd.
 ...Opposite Party

Counsel for the Applicant:
Pritish Kumar, Amal Rastogi

Counsel for the Opposite Party:
Amrenra Nath Tripathi, Ajay Kumar Mishra

Arbitration
Law
-
Arbitration
and
Conciliation Act, 1996 - Sections 9,
2(1)(e), 2(1)(f) - Commercial Courts Act,
2015 - Sections 4 & 10 - Jurisdiction of
Commercial Division - Applicant sought interim
relief under Section 9 to restrain respondent
from breaching a marketing agreement dated
25.07.2018 - Respondent raised preliminary
objection on jurisdiction, arguing Allahabad High
Court, lacking ordinary original civil jurisdiction,
cannot constitute a Commercial Division - Held,
dispute qualifies as international commercial
arbitration under Section 2(1)(f) as respondent
is a Nepal-based company - Section 10(1) of
Commercial
Courts
Act
mandates
that
applications
in
international
commercial
arbitration be heard by Commercial Division of
High Court, irrespective of ordinary original civil
jurisdiction
-
Section
4's
restriction
on
Commercial Division to High Courts with
ordinary original civil jurisdiction does not limit
Section
10's
mandate
for
international
commercial arbitration - ITI Limited Vs Alphion
Corporation followed, affirming Commercial
Division's jurisdiction for such matters -
Allahabad High Court's Commercial Division,
constituted by Chief Justice, has jurisdiction to
hear the application - Preliminary objection
rejected, case listed for hearing. (Para 9-27)

Application
maintainable,
listed
for
hearing.

List of Cases Cited:

1. ITI Ltd. Vs Alphion Corporation; Commercial
Appeal No. 22 of 2022, decided on 25.02.2022
(Karnataka High Court)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pritish Kumar, Advocate
assisted by Sri Amal Rastogi for the
petitioner and Sri Amrendra Nath Tripathi
assisted by Sri Akash Mishra for the
respondents.

2. The petitioner has invoked the
jurisdiction of this court by filing an
application
under
section
9
of
the
arbitration and conciliation act, 1996
seeking to restrain the respondents from
importing, exporting marketing and selling
the Beer manufactured by the respondents
in violation of the agreement dated
25/07/2018.