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Sole Arbitrator may appoint qualified engineer/s or expert/s u/s 26 of the Arbitration Act, 1996:SC

Accordingly, with the consent of the Counsel for the parties, we appoint Justice G. S. Singhvi, former Judge of this Court, as the Sole Arbitrator, who will adjudicate all the claims and counterclaims afresh. If the Sole Arbitrator requires the assistance of qualified Engineer/s or Expert/s, he may appoint such person/s under Section 26 of the Arbitration and Conciliation Act, 1996. The Ld. Arbitrator is free to fix his fees after consultation with the parties, which will be borne equally by them (Para 6).


NATIONAL HIGHWAYS AUTHORITY OF INDIA V/s M/s. PROGRESSIVE CONSTRUCTION LTD.

CIVIL APPEAL NO. 542 OF 2021

Decided on February 12th, 2021


A two-judge bench “comprising of Justice INDU MALHOTRA and Justice AJAY RASTOGI decided on the case. The court held to allow the appeal.

The present appeal arises out of the Judgment passed under Section 34 of the Arbitration and Conciliation Act, 1996 wherein the Single Judge vide Order dated 10.04.2019 has set aside the Award dated 27.04.2016 passed by a three-member tribunal. It has been observed that the arbitral tribunal has drawn incorrect inferences from the documents on record, and has not considered vital and relevant evidence in reaching its conclusions. On this basis, a substantial number of claims and counterclaims were rejected, granting liberty to the parties to re­agitate their claims, and counterclaim (a) afresh in accordance with the law. Aggrieved by the judgment of the Single Judge, cross-appeals were filed by both parties under Section 37 before the Division Bench. The Division Bench vide the impugned interim Order dated 04.12.2019 directed that the Appeals be confined to the findings with respect to claim nos. 1(i) and (ii); and counterclaim (a).


The key issue here is whether the challenged appeal made by NHAI against the interim order will be granted or not.


During the pendency of the present appeal, the parties agreed to a fresh adjudication of all the claims and counterclaims made by the parties before a Sole Arbitrator to be appointed by this Court.


The court decided that “Accordingly, with the consent of the Counsel for the parties, we appoint Justice G. S. Singhvi, former Judge of this Court, as the Sole Arbitrator, who will adjudicate all the claims and counterclaims afresh. If the Sole Arbitrator requires the assistance of qualified Engineer/s or Expert/s, he may appoint such person/s under Section 26 of the Arbitration and Conciliation Act, 1996. The Ld. Arbitrator is free to fix his fees after consultation with the parties, which will be borne equally by them” (Para 6).


The court held that “In view of the aforesaid directions, the Order dated 04.12.2019 passed by the Delhi High Court in FAO(OS)(Comm) 353/2019 is set aside. The Appeals filed by both parties under Section 37 of the Arbitration Act being FAO (OS) (Comm) 353 and 182 of 2019 pending before the Delhi High Court have accordingly become infructuous. The present Appeal is allowed in the aforesaid terms. Pending applications, if any, stand disposed of.” (Para 9).




Saptarshi Mukhopadhyay

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