# Raster Images Pvt. Ltd. Tamil Nadu v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 1099
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-24
- **Case number:** Civil Misc. Arbitration Application No. 10 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raster-images-pvt-ltd-tamil-nadu-v-state-of-u-p-anr-50738
- **Pages:** 31

## Headnote

Civil Law-The Arbitration and Conciliation
Act, 1996-Section 11(6)---The petition has
been filed by one member of the Consortium
only without impleading the other Consortium
members including against whom allegations
have been leveled and the said allegations are
prima facie indicative of disputes inter-se the
Consortium members which may not be
referable for arbitration.--- Petition is not
maintainable at the behest of the petitioner
alone for the nature of disputes so raised.
(Para 61 & 62)

Petition dismissed. (E-15)
1100 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,881 of 108,524. This is a partial read: ask again with offset=39881 for what follows._

9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1099
protect society and to deter the criminal in
achieving avowed object of law. Further, it
is expected that courts would operate the
sentencing system so as to impose such
sentence which reflects conscience of
society and sentencing process has to be
stern where it should be. The Court will
be failing in its duty if appropriate
punishment is not awarded for a crime
which has been committed not only
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it
should conform to and be consistent with
the atrocity and brutality which the
crime has been perpetrated, enormity of
crime warranting public abhorrence and
it should 'respond to the society's cry for
justice against the criminal'. [Vide:
Sumer Singh vs. Surajbhan Singh and
others, (2014) 7 SCC 323, Sham
Sunder vs. Puran, (1990) 4 SCC 731,
M.P. v. Saleem, (2005) 5 SCC 554,
Ravji v. State of Rajasthan, (1996) 2
SCC 175].

31. Under the facts and circumstances
of the case and considering the manner in
which offence is committed as also the age
of the victim, who is sexually assaulted, we
deem it appropriate to modify the sentence
awarded to the accused-appellant by trial
court, keeping in view that accused is a first
offender
and
the
possibility
of
his
correction cannot be ruled out.

(i) The conviction of the accused
under the alleged sections is maintained.

(ii) Sentence of life imprisonment
under Section 376(2)(f) I.P.C. is converted
to 14 years rigorous imprisonment.

(iii) In default of payment of fine as
awarded by trial court under the alleged
sections, accused-appellant shall further
undergo for a period of two months
imprisonment.

(iv) All the sentences shall run
concurrently and accused-appellant shall be
entitled to the benefit of Section 428
Cr.P.C.

32. Certify the copy of this judgement
to the trial court concerned for immediate
compliance.
----------
(2023) 9 ILRA 1099
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.08.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Misc. Arbitration Application No. 10 of 2020

Raster Images Pvt. Ltd. Tamil Nadu
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Ritesh Kalia, Abhishek Khare, Debasish
Moitra,
Pravin
Kumar
Verma,
Vabhu
Shankar

Counsel for the Opposite Parties:
Vivek Kumar Rai, Ajai Kumar, C.S.C.

Civil Law-The Arbitration and Conciliation
Act, 1996-Section 11(6)---The petition has
been filed by one member of the Consortium
only without impleading the other Consortium
members including against whom allegations
have been leveled and the said allegations are
prima facie indicative of disputes inter-se the
Consortium members which may not be
referable for arbitration.--- Petition is not
maintainable at the behest of the petitioner
alone for the nature of disputes so raised.
(Para 61 & 62)

Petition dismissed. (E-15)
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Jaspreet Singh, J.)

A. Background Facts:-

1. The instant petition has been
preferred under Section 11 (6) of the
Arbitration and Conciliation Act, 1996 by
the petitioner-company who is a member of
a Consortium comprising of Pawanshree
Foods International Pvt. Ltd. and Nanotrics
Innovations Pvt. Ltd. The aforesaid two
companies along with the present petitioner
company had jointly made a bid for a
contract floated by the Department of
Medical Health and Family Welfare,
Government
of
Uttar
Pradesh,
for
implementation of Tele Medicine Services
in the State of Uttar Pradesh.

2. Proposals were invited and a
request for qualification (RFQ) cum
(Request for proposal) (RFP) along with
instructions to bidder (tender document)
inviting
bids
from
bidders
for
the
implementation of tele- medicine services
in the State of Uttar Pradesh. The said
tender document in Clause 2.1.1 permitted
the bidder to submit only one technical
proposal for video consultation services
and/or Tele-Consultation Services and
submit separate financial proposals for each
cluster for video consultation services and
tele-consultation
services
on
E-tender
portal. It permitted the bidder to bid as an
individual or as a member of Consortium
but they were not entitled to submit another
bid for the same cluster either individually
or as a member of any other Consortium, as
the case may be.

3. Clause 2.1.10 instructed that the
bidder should submit a power of attorney as
per the format set forth in Annexure-C of
Appendix-1 authorizing the Signatory to
commit the bid. In case if the bidder is a
Consortium, the members thereof should
furnish a power of attorney in favour of the
lead member as per the format set forth in
Annexure-D of Appendix-1 duly supported
with a chartered document or Board
Resolution in favour of the executant.

4. Clause 2.1.14 states that a bidder
shall not have a conflict of interest that
affects the bidding process and thereafter
certain stipulations are mentioned which
would affect the bidding process and would
be treated to be a conflict of interest. This
particular clause also had an explanation
which clearly stated that in case a bidder is
a Consortium then the term 'bidder' as used
in this Clause 2.1.14 shall include each
member of such Consortium.

5. Clause 2.2 related to eligibility of
bidders and in Clause 2.2.1 (a), it stated
that a bidder may be a single entity or a
group of entities (the Consortium) coming
together to implement the project, however,
no bidder applying individually or as a
member of a Consortium, as the case may
be, can be a member of another bidder. The
term 'bidder' used herein would apply to
both a single entity and a Consortium.

6. Clause (b) of Clause 2.2.1 also
stated that a Consortium for being eligible
for consideration would be subject to the
conditions set out in Clause 2.2.3. which in
the instant case, for clarity is being
reproduced hereinafter :-

"2.2.3 The Bidder (single entity
or consortium of entities), may form an
SPV. Alternatively, the Bidder (Lead
Member in case of Consortium) may itself
execute
the
Service
Agreement
and
implement the Project. In case the Bidder is
a Consortium, it should comply with the
following additional requirements:
9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1101

(a)
Bid
should
contain
the
information required for each Member of
the
Consortium
provided
number
of
members of Consortium should not exceed
3(three).

(b) Members of the Consortium
shall nominate 1 (one) member as the lead
member ("Lead Member), who shall have
capital investment share of at least 26 %
(twenty six per cent) of the Project:

(c) The nomination of the Lead
Member shall be supported by a Power of
Attorney, as

per the format set forth in
Annexure D of Appendix-l, signed by all the
other

members of the Consortium,

(d) The parties to a Consortium
may form an appropriate SPV or itself
execute the Project through Lead Member
shall sign the agreement with Authority, for
and behalf of consortium and other
members
shall
join
in
signing
the
agreement as confirming party. In this
regard, its clarified that all member of the
consortium shall be jointly and severally
liable to execute the Project during the
contract period, and

(e) Members of the Consortium
shall enter into a binding Joint Bidding
Agreement
(the
-Joint
Bidding
Agreement") for the purpose of submitting
the Bid. The Joint Bidding Agreement shall,
inter alia:

(i) convey the intent to form an
SPV with capital investment commitment
(s) execute through Lead Member in
accordance with this RFP which would
enter into the Service Agreement and
subsequently
carry
out
all
the
responsibilities as Service Provider in
terms of the Service Agreement. in case the
Contract to undertake the Project is
awarded to the Consortium

(ii) clearly outline the proposed
roles and responsibilities of each Member
at each stage.

(iii) commit the minimum capital
investment contribution by each Member,
and

(iv) include a statement to the
effect that all Members of the Consortium
shall, till the term of draft Service
Agreement in accordance with the Service
Agreements, be liable Jointly and severally
for all obligations of the Service Providers
in relation to the Project.

(f) except as provided under this
RFP and the Bidding Documents. there
shall not be any amendment to the Joint
Bidding Agreement without the prior
written consent of the Authority.

(Note: Joint Bidding Agreement
should be submitted along with the Bid.
The Joint Bidding Agreement entered into
between the members of the Consortium
should be specific to the Project and should
fulfill the above requirements, failing which
the
Bid
shall
be
considered
nonresponsive."

7. From the perusal of the aforesaid
Clause, it would indicate that a bidder
either a single entity or consortium of
entities may form a SPV (Special Purpose
Vehicle). Alternatively, the lead member in
case of a Consortium may itself execute the
service agreement and implement the
project. In case the bidder is a Consortium,
it should comply with the additional
requirements as provided in Clause 2.2.3
which
has
already
been
reproduced
hereinabove.

8. Clause 2.2.6 stated that no change
in the composition of the Consortium will
be allowed subsequent to the submission of
the bid during the bidding process.
1102 INDIAN LAW REPORTS ALLAHABAD SERIES

9.

The
tender
document
also
contained the prescribed formats in shape
of Appendix. However, in the instant case
Annexure-B relating to general information
of bidder, Annexure-C, power of attorney
for signing of bid, Annexure -D- Power of
attorney for lead member of Consortium,
Annexure-E-relating to the format of bid
security (bank guarantee) and Annexure F-
joint bidding agreement was also provided
including Annexure G which related to the
technical capacity of the bidder.

10. It is in the aforesaid backdrop that
the petitioner along with Pawanshree Foods
International Pvt. Ltd. and Nanotrics
Innovations Pvt. Ltd., as a Consortium
made a bid for the RFQ-cum-RFP for
implementation of Tele-medicine services
in the State of Uttar Pradesh. The bid of the
Consortium comprising of the petitioner
along with Pawanshree Foods International
Pvt. Ltd. and Nanotrics Innovations Pvt.
Ltd. (with Pawanshree Foods International
Pvt. Ltd. being the lead member) was
accepted and a service agreement was
entered by the lead member of the
Consortium with the State of Uttar Pradesh
through the Director General, Medical and
Health Services, Department of Medical
Health and Family Welfare.

11. This agreement dated 30th
January, 2019 clearly outlined that the
Governor of the State of Uttar Pradesh
through the Director General, Medical and
Health Services, Department of Medical
Health and Family Welfare was referred to
as the 'Authority' and treated as a first
party of the first part of the agreement and
M/s Pawanshree Foods International Pvt.
Ltd., being the lead member of the
Consortium comprising of Consortium
members (i) M/s Raster Images Pvt. Ltd.
(ii) M/s Nanotrics Innovations Pvt. Ltd.
were referred as the Service Provider and
party of the second part. The agreement
further clarified that for the purposes of the
agreement both the Authority and the
Service Provider are collectively referred to
as the 'parties' and individually a ' party'.

12. The agreement amongst various
conditions/obligations delineated therein
also
provided
a
complete
Dispute
Resolution Mechanism in Article 28. For
the sake of convenience, the entire Article
28 relating to the Dispute Resolution
Mechanism
is
being
reproduced
hereinafter:-

"ARTICLE 28-DISPUTE
RESOLUTION

28.1 Dispute resolution

28.1.1 Any dispute, difference or
controversy of whatever nature howsoever
ansing 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 28:2

28.1.2 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.

28.2 Conciliation

28.2.1 In the event of any Dispute
between the Parties, either Party may call
upon
the designated official
of
the
Authority to mediate and assist the Parties
in arriving at an amicable semlement
thereof. Failing mediation by the Authority,
9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1103
either Party may require such Dispute to be
referred to the chairman or any designated
official of the Authority and the chairman
or any designated official of the board of
directors or any equivalent official of the
Service Provider for amicable sentement
and upon such reference, the said persons
shall meet no later than 7 days from the
date of reference to discuss and attempt to
amicably resolve the Dispute. If such
meeting does not take place within the 7
days period or the Dispute is not amicably
settled within 15 days of the meeting or the
Dispute is not resolved as evidenced by the
signing of written terms of senlement within
30 days of the notice in writing referred to
in Clause 28.1.1 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 28.3.

28.3 Arbitration

28.3.1 Any Dispute which is not
resolved amicably by conciliation, as
provided in Clause 28.2, shall be finally
decided by reference to arbitration in
accordance
with
Clase
28.3.2.
Such
arbitration shall be held in accordance
with the provisions of the Arbitration Act.
The venue of such artistion shall be
Lucknow, and the language of arbitration
proceedings shall be English

28.3.2 Each Party shall appoint
one arbitrange and the two appointed
arbitrators shall appoint a third arbitrator,
who will be the presiding arbitrator in
accordance
the
Arbitration
and
Conciliation Act 1996 and any dment
thereof, In the event of disagreement
between
the
two
arbitrators,
the
appointment shall be in accordance with
the Arbitration and Conciliation Act, 1996
and any amendment thereof.

28.3.3 The arbitrators shall make
a reasoned award (the "Award"). Any
Award made in any arbitration held
pursuant to this Article 28 shall be final
and binding on the Parties as from the date
it is made, and the Service Provider and the
Authority agree and undertake to carry out
such Award without delay.

28.3.4 The Service Provider and
the Authority agree that an Award may be
enforced against the Service Provider
and/or the Authority, as the case may be,
and their respective assets wherever
situated.

28.3.5 This Agreement and the
rights and obligations of the Parties shall
remain in full force and effect, pending the
Award in any arbitration proceeding
hereunder."...

13. From the perusal of the aforesaid
Article 28, it would indicate that 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.

14. In the event of any dispute
between the parties, either party is required
to call upon the designated official of the
Authority to mediate and assist the parties
in arriving at an amicable settlement.
Failing mediation by the Authority, either
party could require such dispute to be
referred to the Chairman or any designated
official
of
the
Authority
and
such
designated official would enter into such
reference and would meet the parties within
seven days. In case if the meeting did not
take place within seven days or the dispute
is not amicably settled within 15 days of
the meeting or the dispute is not resolved as
1104 INDIAN LAW REPORTS ALLAHABAD SERIES
evidenced by signing of the written terms
in a settlement within 30 days of notice in
writing or such longer period as may be
mutually agreed by the parties, then either
party may refer the disputes to Arbitration.

15. As per the arbitration clause
contained in Clause 28.3.2 each party is
entitled to appoint one Arbitrator and the
two appointed Arbitrators shall appoint a
third Arbitrator who would be the the
Presiding Arbitrator and the proceedings
will be held in accordance with the
Arbitration and Conciliation Act, 1996.

16. It is in the aforesaid factual
background that M/s Raster Images Pvt. Ltd.,
the petitioner has approached this Court
under Section 11 (6) of the Arbitration and
Conciliation Act, 1996 for appointment of an
Arbitrator on behalf of the respondents with
an alternate prayer that the Arbitrator
appointed by the petitioner may be permitted
to continue as a sole Arbitrator or any other
person may be appointed as an Arbitrator.

B- Pleadings and Cause of Action:-

17. The petitioner has referred to the
Tele-Medicine Service Agreement which has
been brought on record as Annexure No. 1
with the petition. In paragraph 9 of the
petition, it has been stated that the petitioner
had written a letter dated 17.06.2019
informing that the lead member of the
Consortium in the agreement had surpassed
all conditions and is taking charge of every
sector which he is not competent to do and he
has unilaterally made a breach of Consortium
Agreement as referred to as Annexure -F of
the bid document read along with AnnexureB.

18. It is also stated that on account of
gross violation, made by the lead member
of the Consortium namely M/s Pawanshree
Foods International Pvt. Ltd. which could
give rise to medico legal cases and since
the liability amongst the Consortium
members was joint and several, hence, it
was in the fitness of things that the
respondent would take note of such issues
flagged by the petitioner-company as
enumerated in its letter dated 17.06.2019
which has been brought on record as
Annexure No. 4.

19. The petitioner further requested
the respondents to settle the claims and
issues which were enumerated by the
petitioner in its letter dated 17.06.2019
which was followed by another letter dated
18.09.2019 but the respondent did not refer
the matter to the designated authority for
resolution of disputes amicably.

20.

Since
the
conciliation
as
contemplation in Article 28.2 did not
materialize, consequently, the petitioner by
means of its letter dated 21st of October,
2019 nominated its Arbitrator Mr. Rakesh
Kumar. A copy of the said letter has been
brought on record as Annexure No. 2.
Since there was no response from the side
of
the
respondents,
accordingly,
the
petitioner filed the instant petition claiming
the reliefs which have been referred to
hereinabove in para 15 above.

21. This Court by means of order
dated 31.01.2020 had passed the following
order which reads as under:-

"Learned
counsel
for
the
petitioner has preferred this petition under
Section 11(6) of the Arbitration and
Conciliation Act, 1996. It has been averred
that an agreement was entered between
Pawan Shree International Pvt. Ltd. and
the respondents dated 13.01.2019. The
9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1105
aforesaid agreement contains a dispute
resolution mechanism in Clause-28. It has
also been averred that in furtherance of the
aforesaid clause, the present petitioner,
who is a part of the consortium invoked the
conciliation mechanism by means of the
letter dated 18.09.2019. Since, the same
remained
unresolved,
therefore,
the
petitioner again invoked the arbitration
clause by means of his notice dated
21.10.2019.

Prima-facie, it appears that the
dispute is between the consortium members
inter-se and not so between the SPV and
the respondents.

A specific query was put to the
learned counsel for the petitioner to
explain the aforesaid position for which he
seeks time.

Accordingly, put up this matter
on 12.02.2020. In the meantime, learned
counsel for the petitioner shall also bring
on record the agreement entered between
the consortium members for creating the
SPV as well as the tender documents by
which SPV Le. Pawan Shree International
Pvt. Ltd., was granted the tender. The
aforesaid documents shall be filed by
means of a supplementary affidavit prior to
the next date as fixed by this Court."

22. From the pleadings as made in the
petition, it would indicate that the petitioner
is a consortium member along with Pawan
Shree International Pvt. Ltd. and Nanotrics
Innovations Pvt. Ltd. and that there are
disputes amongst the consortium members
inasmuch
as
certain
specific
duties/obligations were assigned to each
consortium member, however, the same has
been usurped by the lead member to
detriment of the other members.

23. Noticing the pleadings, this Court
at the first blush, noticed that the disputes
which have been raised by the petitioner
somehow gave a flavour of disputes
between the Consortium members inter-se
and not so much between the Consortium
on one hand and the respondent-Authority
on the other.

24. In order to clarify, the Court vide
its order dated 31.01.2020 directed the
petitioner to bring on record the agreement
entered between the Consortium members.
Significantly, the said documents were
filed by the petitioner only by means of the
supplementary affidavit dated 12th August,
2023.

25. In the meantime, the record
indicates that no counter affidavit was filed
on behalf of the State, though, it was duly
represented. There is a clear indication in
the order passed by this Court dated
16.11.2021 that despite time having been
granted to the learned counsel for the State
yet neither any counter affidavit nor any
instructions were available with them.

26. In the aforesaid background, in
absence of any counter affidavit filed by
the State and since the petitioner had also
not filed the requisite documents as
required of the petition and stated in the
order of the Court dated 31.01.2020,
accordingly, a coordinate Bench of this
Court found that since the Arbitration
clause was subsisting and a request for
appointment of an Arbitrator has been
made which has not been responded, hence,
the Court proposed the name of Hon'ble
Mr. Justice Brijesh Kumar Srivastava-II, a
retired Judge of this Court, as a proposed
Arbitrator and sought his consent vide
order dated 16.11.2021. On 06.12.2021, as
the consent from the proposed Arbitrator
had been received, consequently, the Court
appointed Hon'ble Mr. Justice Brijesh
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar Srivastava-II a retired Judge of this
Court as an Arbitrator on behalf of the
respondent.

27. It is at this stage, the lead member
of the Consortium M/s Pawanshree Foods
International Pvt. Ltd. filed a ReviewApplication bearing No. 120 of 2022 in the
Arbitration Application No. 10 of 2020
seeking
recall
of
the
order
dated
16.11.2021 and 06.12.2021.

28. After hearing the learned counsel
for the parties in the Review-Application,
the Court by means of order dated
13.12.2022
allowed
the
ReviewApplication and recalled the order dated
16.11.2021 and 06.12.2021 and further
provided that the application under Section
11(6) of the Act of 1996 shall now be
placed before the appropriate Court. The
order in review, dated 13.12.2022, is being
re-produced
hereinafter
for
ready
reference..

"Heard Sri Mahendra Pratap
Singh, learned counsel for the applicant,
Sri Vivek Shukla, learned Addl. C.S.C. and
Sri Debashish Moitra, learned counsel for
the opposite parties.

On 14.10.2022, this Court had
passed the following order:-

"Heard Mr. Mahendra Pratap
Singh, learned counsel for the reviewapplicant and Mr. Debashish Moitra, Ms.
Viha Shankar and Mr. Pravin Kumar
Verma, learned counsel for the opposite
parties.

After hearing counsel for the
parties, what comes out is firstly that the
Review Application seeking review of an
order passed in the proceedings under
Section 11 (6) of the Arbitration and
Conciliation Act, 1996 is maintainable in
view of Para 12 of the judgment dated
05.04.2021
rendered by
Hon'ble
the
Supreme Court in Special Leave Petition
(C) No. 4820 of 2021; Mohd. Anwar and
Ors. Vs. Pushplata Jain and Ors., Jain
Studios Ltd. v. Shin Satellite Public Co.
Ltd.; (2006) 5 SCC 501 and Municipal
Corporation of Greater Mumbai and Anr.
Vs. Pratibha Industries Limited and Ors.;
(2019) 3 SCC 203 and, secondly while
filing the application under Section 11 (6)
of the Act, the applicant did not implead the
other two Members of the Consortium i.e.
the lead Member who has filed the Review
Application and other Member, namely,
M/s
Nanotricks
Innovations
Private
Limited. This would also have not affected
the order, but for the arbitration clause
according to which a three member
Arbitral Tribunal is to hold arbitration
proceedings. As the Government had not
appointed its Arbitrator in spite of a notice
by the applicant, therefore, this Court
appointed an Arbitrator under Section 11
(6) of the Act, leaving it open for the
Arbitrator appointed by the applicant and
the Arbitrator appointed by this Court to
appoint the third Arbitrator.

Now, in this scenario, the counsel
appearing for the applicant seeking review
says that what about his client's right to
appoint an Arbitrator. Likewise the third
Member
of
the
Consortium
referred
hereinabove, therefore, this has resulted in
a
complication
on
account
of
non
impleadment of two Members of the
Consortium by the applicant and passing of
an order behind their back in the
proceedings under Section 11 (6) of the
Act, which renders the order under Review
apparently erroneous, especially as there
appears difference between the Consortium
Members.

However, at this stage, counsel
for
the
original
applicant
who
is
respondent in the review application, M/s
9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1107
Raster Images Private Limited says that the
third Member would also appear before the
Court on the next date and accordingly the
Arbitrator be appointed replacing its
Arbitrator.

Let the applicant implead the
third Member of the Consortium i.e. M/s
Nanotricks Innovations Private Limited as
a party in the review application, even if it
was not a party in the original application
so as to facilitate the aforesaid exercise.

Mr. D. Moitra, learned counsel
who has appeared on behalf of the original
applicant does not have any objection to
such impleadment.

Issue notice to newly impleaded
opposite party.

Let this matter come up on
16.11.2022.

The interim arrangement made
earlier shall continue till next date of
listing."

The Court had categorically held
that
review
application
even
in
a
proceedings under Section 11(6) of the
Arbitration and Conciliation Act, 1996 is
maintainable in view of decisions of
Hon'ble the Supreme Court, thereafter, this
Court had pointed out error which had
occurred while passing the final order in
the proceedings. The Court would have
disposed of the review application on the
earlier date itself but one of the necessary
parties had not been impleaded. In the
review application, the third member of the
consortium,
lead
member
being
the
applicant seeking review, and the other
member being the respondent herein who
was original applicant in the proceedings
under Section 11(6) of the Act, 1996, is
present today. The third member of the
consortium is represented by Sri Vivek
Kumar, Advocate who has filed his
Vakalatnama.

Considering the error already
pointed out in the earlier order dated
14.10.2022,
especially
as,
necessary
parties were not impleaded and they were
not heard and there is difference of opinion
between
the
consortium
members
themselves, this Court is of the opinion that
the order dated 06.12.2021 passed in
Arbitration Application No.10 of 2020
[Raster Images Pvt. Ltd. vs. State of U.P. &
Anr.] needs to be recalled. It is hereby
recalled.
Consequences
shall
follow
accordingly. The proceedings are restored
to its original number. The application
under Section 11(6) of the Act, 1996 shall
now be placed before the appropriate
Court which has been assigned such
matters, on 19.12.2022.

Accordingly, the application for
review is allowed in the aforesaid terms."

29. It is in this background that the
matter came up before this Court and once
again the Court by means of order dated
09.08.2023 had required the learned
counsel for the petitioner to address the
Court on the maintainability of the present
petition. It is thereafter that the petitioner
filed a supplementary affidavit dated 12th
August, 2023 and 23rd August, 2023 by
which it brought on record the joint bidding
agreement, the tender document and certain
other letters which will be referred to at a
later stage. The petitioner brought on
record the orders which were passed by the
Arbitral Tribunal which was constituted in
furtherance of the order dated 06.12.2021.

30. This Court further notices that
despite adequate time was given to the
State to respond, unfortunately, neither any
counter affidavit was filed nor there was
any assistance on part of the State. On one
occasion i.e. on 21.08.2023 the Director of
the respondent was also called to assist the
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
Court, however, even that attempt was
futile as neither the Director nor the
Standing Counsel could answer the query
of the Court and in the aforesaid backdrop
mere cosmetic submissions were made by
the State which were of no help and it is
disappointing to note how the State
conducts its case as it is practically a case
of no contest from the side of the
respondent.

C: Submissions on behalf of the
petitioner:-

31. Mr. Debasish Moitra along with
Mr. Vibhu Shankar, learned counsel, for
the petitioner has made the following
submissions:-

(a) The RFQ-cum-RFP permitted
a Consortium to participate in the tender
and make its bid. The Consortium members
comprising of M/s Pawanshree Foods
International Pvt. Ltd., M/s Raster Images
Pvt. Ltd. (the petitioner herein) and M/s
Nanotrics Innovations Pvt. Ltd. had entered
into an agreement with the respondent on
30th January, 2019. It is urged that since
the Consortium was required to make a
SPV (Special Purpose Vehicle) for the
purpose of implementing the project and
each
Consortium
member
had
been
assigned specific roles but in violation
thereof the lead member M/s Pawanshree
Foods
International
Pvt.
Ltd.
was
unilaterally executing the projects and was
also
involved
in
certain
undesirable
practices which would harm the project as a
whole, coupled with the fact that the
petitioner being a member of Consortium,
though, had no role or involvement in such
undesirable
practices
yet
would
be
unnecessarily implicated as the agreement
provided for joint and sevaral liabilities of
Consortium members. This was an issue of
concern to the petitioner and it was
appropriately flagged with the respondentAuthority but it did not meet any
favourable response.

(b) It is further contended that
instead of remedying the situation, the
respondent were perhaps were in cahoots
with the lead member and turned a nelson's
eye. It was necessary for the respondentauthority to have discharged its obligations
by settling the disputes and the issues
which were flagged by the petitioner rather
than to let the situation go out of control.

(c) It is thus, submitted that on
one hand, the petitioner had amplified the
gross violations made by the lead member
of the terms and conditions, as agreed, and
had requested for an amicable settlement
which was ignored by the Authority but on
the other hand, a letter was issued, by the
respondent
Authority
cautioning
the
members of the Consortium including the
petitioner that since the work was not being
done in accordance with the agreement, the
Authority would take action which would
be against the Consortium Members both
jointly and severally.

(d) In the aforesaid backdrop, the
petitioner had invoked the arbitration
clause and nominated its arbitrator and
requested the Authority to appoint its own
which was not acceeded, hence, the
petition.

(e) It is also submitted that in the
RFQ-cum-RFP tender document in Clause
2.1.14 and the explanation appended
thereto, clearly stated that in case a bidder
is a consortium then the term 'bidder' as
used in Clause 2.1.14 shall include each
member of such Consortium. It is sought to
be emphasized by Mr. Moitra, that from the
perusal of the entire document as well as
the tele-medicine service agreement, it
would indicate that each and every member
of the Consortium had a right to call upon
9 All. Raster Images Pvt. Ltd. Tamil Nadu Vs. State of U.P. & Anr.
1109
the other party, i.e. the Authority to resolve
any dispute which was arising out of and of
whatever nature from the Tele-medicine
Service Agreement, as the arbitration
clause was widely worded.

(f) It is urged that the issues
which were brought to the notice of the
respondent-authority were all such issues
which arose from the Service Agreement
dated 30th January, 2019 and consequently
since each party had a right to invoke the
Dispute Resolution Mechanism which
included
the
petitioner
as
well,
consequently, the petitioner invoked the
Dispute Resolution Mechanism, which
failed and now the said Company is before
the Court in terms of Section 11(6) of the
Act of 1996.

(g) Mr. Moitra, has further referred
to the supplementary affidavit dated 23rd
August, 2023 and has referred to the order
which was passed by the Arbitral Tribunal
dated 02.06.2022 whereby on an application
moved
by
M/s
Pawanshree
Foods
International Pvt. Ltd. the lead member had
sought its impleadment before the Arbitral
Tribunal. Reference was also made to an
order dated 24.05.2022 whereby this Court
while entertaining the Review-Application of
the lead member M/s Pawanshree Foods
International Pvt. Ltd. had granted time to the
respondents to file their response to the
review-application.

It was urged that the Arbitral
Tribunal
on
02.06.2022
allowed
the
application
for
impleadment
of
M/s
Pawanshree Foods International Pvt. Ltd.
and it was directed to be impleaded as
respondent no. 2 and later by the order
dated 06.07.2022 the Tribunal further kept
for
consideration
the
application
for
impleadment moved by M/s Nanotrics
Innovations Pvt. Ltd.

(h) The learned counsel for the
petitioner has also drawn the attention of
the Court to certain letters which were
written by the petitioner dated 23rd August,
2019 addressed to the respondents as well
as letter dated 22.06.2021 written by M/s
Nanotrics Innovations Pvt. Ltd. addressed
to the respondents also flagging concerns
regarding violation of the conditions by the
lead member which was similar to the ones
raised by the petitioner-company. With the
aid of the Clauses in the agreement and the
documents as referred in the petition and in
the two supplementary affidavits, the thrust
of the submission is that apparently
disputes had emerged between the parties
(which collectively meant the members of
the Consortium and the respondent) and
according to Article 28 each party had a
right to invoke the Dispute Resolution
Mechanism and since the same did not bear
any fruitful result, consequently, the
Arbitrator appointed by the petitioner may
proceed as a sole Arbitrator or in the
alternate an Arbitral Tribunal be constituted
in accordance with the provisions contained
in the agreement.

In support of his submissions,
Mr. Moitra, has relied upon the decision of
the Apex Court in Bharat Sanchar Nigam
Ltd. and Another Vs. Nortail India Pvt.
Ltd.; (2021) 5 SCC 738; State of Kerala
Vs. Zoom Developers Pvt. Ltd.; (2009) 4
SCC 563 and a decision of the Telangana
High Court in Tecpro Systems Ltd. Vs.
Telangana State Power Generation Power
Ltd. ; 2019 SCC Online TS 1658.

(i) Relying upon the aforesaid
decisions, it is urged by Mr. Moitra, that
Section 11 (6-B) of the Arbitration and
Conciliation Act, 1996 has not been
amended by the 2019 amendment as
introduced in the Act, accordingly, the
High Court does not exercise any judicial
power
that
may
determine
the
maintainability of the petition, existence or
validity of the arbitration agreement which
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
is to be left to be decided by the Arbitral
Tribunal as held in para 37.1 of Nortal
India Pvt. Ltd. (supra).

(j)
While
referring
to
the
decisions in Zoom Developers Pvt. Ltd.
(supra),
it
is
urged
that
since
responsibilities and work stood demarcated
between the members of the Consortium, it
would
entitle
each
member
of
the
Consortium to raise the grievance and so
also in the instant case, as indicated in the
joint bidding agreement dated 17th August,
2018, each Consortium member had
separate responsibilities assigned, hence,
any aggrieved member could raise the
issue.

(k) While relying upon the
decision of Tecpro System Ltd. (supra), it
is urged that it has been held in the said
case that any member of a Consortium can
invoke the Arbitration Clause and thus the
petitioner being a member of Consortium is
entitled to invoke the Arbitration Clause
and any disputed or contentious matter can
be left for adjudication before the Tribunal.

(l) The petitioner has been able to
establish that the Arbitration Clause, its due
invocation as envisaged in the agreement
and that the petitioner is a party to the said
agreement and practically there is no
opposition from the other side, in all the
aforesaid
circumstances,
the
petition
deserves to be allowed and the Arbitral
Tribunal be constituted.

D- Discussions and Analysis:-

32. The Court has given its thoughtful
consideration to the submissions made by
the learned counsel for the appellant and
also perused the record.

33. At the outset, it may be noticed
RFQ-cum-RFP document permits a bidder
who may be a single entity or a group of
entities which is referred to as the
Consortium therein for coming together to
implement the project. The reference made
by Mr. Moitra, learned counsel for the
petitioner to the explanation appended to
Clause 2.1.14, if seen, would reveal that is
confined to to the word 'bidder' in context
with the said Clause 2.1.14 only and it
relates to the stipulations for a bidder to not
have a conflict of interest and certain
enumerations have been made in the said
clause which would be treated as conflict of
interest and thus in order to clarify the
same, the explanation has been appended to
mean that a bidder would include each and
every member of such Consortium.

34. The Tele-medicine Service
Agreement, if seen, would reveal that it
envisages two party regime. One is the
State of Uttar Pradesh who has been
referred to in the said agreement as the
Authority and the other is the Service
Provider i.e. M/s Pawanshree Foods
International Pvt. Ltd. as the lead member
of the Consortium comprising of the
members namely the petitioner and M/s
Nanotrics Innovations Pvt. Ltd. are referred
to as the Service Provider and a party of the
second part. The said agreement clarifies
that the word 'Authority' and the 'Service
Provider' are collectively referred to as the
parties and individually as a party.

35. The Court has also taken note of
the letters which have been brought on
record along with the petition as Annexure
No.