r IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI FRIDAY ,THE TWENTY FIRST DAY OF MARCH TWO THOUSANDAND TWENTY FIVE PRESENT HONOURABLE SRI DHIRAJ SINGH THAKUR, THE CHIEF JUSTICE ARBITRATION APPLICATION NO: 13 OF 2020 Between: M/s. M.S.Ramayya Constructions (P) Ltd., rep. by its Managing Director Regd. Office at SUNIRMITI, D.No.5-42/6, Purushottapuram Colony, Visakhapatnam-530 051 (Cause title Amended as per Court Order dt.27/09/2024. Vide LA No.1 of 2024 in Arbitration Application No.13 of 2020 ...Applicant AND 1. Gitam University, Gandhi Nagar, Visakhapatnam Campus, Rushikonda, Vishakhapatnam, rep. by its Secretary, B.V. Mohan Rao 2. Gandhi Institute of Technology and Management, A Registered Society, Bearing No-277 of 1980, Rep. by its Secretary, Gandhi Nagar Campus, Rushikonda, Visakhapatnam, Andhra Pradesh-530 045 (Respondent No. 2 impleaded as per court order dated 18/10/24 in ARBAPPL No-13 of 2020) ...Respondents Arbitration Application under Sub-Sections (5 & 6) of Section 11 of the Arbitration and Conciliation Act, 1996 read with Para (3) (i) (c) of Scheme for Appointment of Arbitartors, 2006 as framed by the High Court of r Judicature of Andhra Pradesh praying that the High Court may be pleased to appoint an Arbitrator for resolution of disputes arising in respect of the contract entered between the applicant and respondent, covered by a) Work Order No. GUBC-CAW-BHP, dt. 03.08.2017, b) Work Order No. WNB - ELEC-02-MSRCPL-3646, dt. 30.03.2019 and c) Work Order No. GUBC - MCAW - 03-MSRCPL-3680, dt. 16.05.2019. lA NO: 1 OF 2020 Petition under Section 9 of Arbitration and Conciliation Act, 1996 praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondent not to re-allot to any other agency, the work covered by the contract ie., a) Work Order No. GUBC-CAW-BHP, dt. 03.08.2017, b) Work Order No. WNB - ELEC-02-MSRCPL-3646, dt. 30.03.2019 and c) Work Order No. GUBC - MCAW - 03-MSRCPI-3680, dt. 16.05.2019, pending disposal of the present Arbitration Application. Counsel for the Petitioner: Sri P Roy Reddy Counsel for the Respondent No.2: Sri C V R Rudra Prasad The Court made the following: Bench Sr.No;- 2.2- [3441] IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI APHC010154352020 ARBITRATION APPLICATION NO: 13 of 2020 ...Applicant M/s. M.S.Ramayya Constructions (P) Ltd. Vs. ...Respondents Gitam University and others ********** Mr. P. Prathik Reddy appearing vice Mr. P.Roy Reddy Mr. C. V. R. Rudra Prasad Advocate for Applicant: Advocate for Respondents: CORAM ;THE CHIEF JUSTICE DHIRAJ SINGH THAKUR DATE PC : This is an application filed under Section 11(5) and Section 11(6) of the Arbitration and Conciliation Act, 1996, (for short, “the Act of 1996 ) seeking appointment of an arbitrator to adjudicate upon the disputes arising out of and with the Work Orders, dated 03.08.2017, 30.03.2019 and in connection 16.05.2019. It is stated that as per Clause 23.4 of the General Conditions of Contract (GCC), which is applicable to the work orders supra, the dispute needs to be referred to an independent arbitrator. 2. I 2 HCJ ARBAPPL_13 2020 At the very outset, it has been noticed that the applicant has not served any notice upon the respondent invoking the arbitration clause which is a pre requisite for seeking any reference under Section 11 of the Act of 1996. Reference in this regard can be made to the Apex Court judgment rendered in the case of Bharat Sanchar Nigam Ltd v. M/S Nortel Networks India Pvt. Ltd.”' wherein it was held: 3. “15. It is now fairly well-settled that the limitation for filing application under Section 11 would arise upon the failure to make the appointment of the arbitrator within a period of 30 days from issuance of the notice invoking arbitration. In other words, an application under Section 11 can be filed only after a notice of arbitration in respect of the particular claim(s)/dispute(s) to be referred to arbitration [as contemplated by Section 21 of the Act] is made, and there is failure to make the appointment. ’’ an 4. This view has already been followed by this Court in M/s.Shree Swaminarayan Travels vs. M/s.OII Natural Gas Corporation Limited^. In the aforementioned backdrop, it may be relevant to refer to certain clauses of GCC, which are relevant to the present controversy. Clause 23 of the GCC pertains to disputes between the parties. Clause 23.1 envisages reference to an Adjudicator, to be made by a contractor if he believes that a decision taken by the Engineer was wrongly taken or was outside the authority conferred upon such an Engineer. The Adjudicator, in terms of Clause 23.1.2 is to then give a decision in writing within 28 days thereafter. 5. \2021)5SCC 738 ^(2024) see OnLine AP 1667 =ARBAPPL_13_2023, decided on 10,05.2024 3 HCJ ARBAPPL 13 2020 Clauses 23.2.1 and 23.2.2 deal with the method and manner of appointment of an Adjudicator whereas Clause 23.3 envisages costs of adjudication by the Adjudicator. Insofar as the dispute resolution clause by an arbitrator is concerned, the same is covered in terms of Clause 23.4.1, which envisages that either party to the contract may refer a decision of the Adjudicator to an arbitrator within 28 days of the Adjudicator’s written decision and if neither party refers a dispute to arbitration within the prescribed period the Adjudicator’s decision would be final and binding. For facility of reference. Clauses 23.4, 23.4.1 and 23.4.2 are reproduced hereunder: ‘23.4 Arbitration 23.4.1 Either party may refer a decision of the Adjudicator to an Arbitrator within 28 days of the Adjudicator's written decision. If neither party refers the dispute to arbitration within the above 28 days, the Adjudicator's decision will be final and binding. 23.4.2 The arbitration shall be conducted in accordance with the procedure stated in the Arbitration and Conciliation Act, 1996 of the Republic of India and any amendments or rules framed under it. ” It appears that while Clauses 23.1.1 and 23.1.2 had been invoked by 6. the applicant, there was no effort made by the applicant to invoke Clause 23.4.1, in the instant case. Learned counsel for the applicant tried to somehow take a stand that a 7. reference to the Adjudicator in terms of 23.1.1 would be sufficient compliance — of Clause 23.4.1 and that a notice for seeking adjudication by an Adjudicator 4 HCJ ARBAPPL 13 2020 should be treated as a request for invoking the arbitration clause, is an argument which is not convincing at all. There is no document placed on record by the applicant, which would in so many words convey that upon reference to the Adjudicator, the applicant had either appointed an arbitrator or requested the other side to agree to the appointment of an arbitrator, in terms of the arbitration clause. Learned counsel for the applicant places reliance upon the judgment of the Delhi High Court, in the case of, Alupro Building Systems Pvt. Ltd. Vs. Ozone Overseas Pvt. Ltd.^ also is totally misplaced and inapt, inasmuch even the said judgment in paragraph 36 held as under: 8. as For the aforesaid reason, the Court is of the view that the present arbitration proceedings, being held without a notice by the Respondent under Section 21 invoking the arbitration clause being received by the Petitioner, are invalid. The only exception to this would have been an agreement to the contrary between the parties. There is no such agreement by which the Petitioner could be said to have waived the requirement of notice under Section 21 of the Act... ” ‘36. 9. Be that as it may, since the mandatory requirement in terms of Section 21 of the Act of 1996 has not been complied with and the arbitration clause not invoked, substantially or even remotely, in terms of the settled legal position, the present arbitration application is not maintainable and is accordingly, dismissed. ^2017 see Online Del 7228 ; (2017) 162 DRJ 412 5 HCJ ARBAPPL 13_2020 Notwithstanding the view that is expressed in the present case, the applicant would still be entitled to move this application under Section 11(5) and Section 11(6), after satisfying the requirement of proper notice invoking the arbitration Clause contained in the Agreement. 10. No order as to costs. Pending miscellaneous applications, if any, in this petition, shall stand closed. Sd/- E KAMESWARA RAO JOINT REGISTRAR //TRUE COPY// SECTON OFFICER To, 1. The Secretary, B.V. Mohan Rao, Gitam University, Gandhi Nagar, Visakhapatnam Campus, Rushikonda, Vishakhapatnam. 2. The Secretary, Gandhi Institute of Technology and Management, A Registered Society, Bearing No-277 of 1980, Gandhi Nagar Campus, Rushikonda, Visakhapatnam, Andhra Pradesh-530 045 3. One CC to Sri. P Roy Reddy, Advocate [OPUC] 4. One CC to Sri. C V R Rudra Prasad, Advocate [OPUC] 5. The Section Officer, O.S. Section, High Court of Andhra Pradesh. 6. Three CD Copies Stu sree 'N HIGH COURT DATED:21/03/2025 ORDER ARBAPPL.No.13 of 2020 f 2 6 MAR 2025 % sr . Current oecuon . ^ DISMISSING THE ARBITRATION APPLICATION