Sr. No.5 Regular IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR (Through VC) Arb P 19/2024 MEDIHELP HEALTHCARE PRIVATE LIMITED Having its registered office at: D-6/6052/1, Vasant Kunj, New Delhi-110070 Through its Authorised Representative Mrs. Jyoti Lamba, aged about 48 years old W/O Mr. Manish Lamba R/O 6055/1, D-6, Vasant Kunj, Delhi-110070 Email:jyoti.lamba@medihelpindia.in …Petitioner(s) Through: Mr. Rahul Sharma, Advocate Vs. Union Territory of Jammu and Kashmir Through Director of Disaster Risk Management, Jhelum and Tawi Flood Recovery Project, Project Management Unit, Era Complex Rambagh Srinagar Jammu and Kashmir Economic Reconstruction Agency Email:dirpmujk@gmail.com ...Respondent(s) Through: Mr. Mohsin S. Qadri, Sr. AAG with Ms. Maha Majeed, Assisting Counsel CORAM: HON’BLE THE CHIEF JUSTICE O R D E R 06.03.2025 1. Heard Mr. Rahul Sharma, learned counsel for the petitioner and Mr. Monsin S. Qadri, learned Sr. AAG assisted by Ms. Maha Majeed, Advocate for the respondent at length and perused the record. 2. The present petition has been filed by the petitioner seeking appointment of an independent Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, to resolve the dispute that has arisen between the parties. 3. Brief facts, which lead to the filing of the present petition, are that the petitioner herein, MediHelp Healthcare Private Limited, having its registered office at D-6/6052/1, Vasant Kunj, New Delhi-110070, is a private company 2 Arb P No. 19/2024 duly incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of trading disaster and rescue preparedness products. 4. That the respondent is the Union Territory of Jammu and Kashmir through its Director of Disaster Risk Management, Project Mangement Unit of the Jhelum and Tawi Flood Recovery Project, Jammu and Kashmir Economic Reconstruction Agency. The objective of this government project is to restore essential services disrupted by the floods and improve the design standard and practices to increase resilience. 5. That on 27.05.2020, the Respondent invited bids for the supply for search and rescue kits through National Competitive Bidding Reference No. Panchayat/Kits/Revised/02 and the petitioner duly applied for the said tender on 10.08.2020 and 17.08.2020 through e-procurement method on www.jktenders.gov.in. It is submitted that the petitioner’s bid was duly accepted by the Respondent and both the parties proceeded to sign the contract agreement on 02.02.2021 and a revised agreement on 22.12.2021. That in due course of the business, the petitioner fulfilled their contractual obligation by supplying 4000 search and rescue kits to the Respondent whereas the Respondent miserably failed to hold their end of the bargain and owe the petitioner an outstanding balance of Rs.1,94,55,643/- (Rupees One Crore Ninety-Four Lacs Fifty-Five Thousand Six Hundred and Forty-Three Only) towards the invoices raised by the petitioner under the said agreement. That the petitioner has requested the Respondent multiple times through emails, letters and Legal Representation to pay the outstanding balance, but all the prayers and requests of the petitioner to amicably resolve the issue fell on deaf ears of the Respondent. 6. That the petitioner has filed this petition before this Court for the appointment of an Arbitrator under Section 11(6) of the Arbitration and 3 Arb P No. 19/2024 Conciliation Act, 1996 pursuant to the arbitration agreement between the parties contained in the Contract Agreement dated 02.02.2021 and revised amended contract dated 22.12.2021 executed between the petitioner and the respondent for the supply of search and rescue kits. 7. That the petitioner invoked the arbitration clause contained in the Contract Agreement by way of a Notice dated 18.03.2024 which called upon the Respondent to nominate the second Arbitrator on its behalf within 30 days from the receipt of the Notice. The 30-day period has expired, and the Respondent is yet to nominate an Arbitrator. The petitioner has not received any communication regarding nomination of the Arbitrator from the Respondent since the said notice has been served. Hence, the present writ petition. 8. Annexure-I of the petition (computer page 64) is the contract agreement and Annexure-II of the petition (computer page) is the contract amendment-I. 9. Clause 10 of the General Conditions of Contract talks of settlement of disputes, which is reproduced hereinbelow: “10. Settlement of Disputes. 10.1. The Purchaser and the Supplier shall make every effort to resolve amicably by direct informal negotiation any disagreement or dispute arising between them under or in connection with the Contract. 10.2 If, after twenty-eight (28) days, the parties have failed to resolve their dispute or difference by such mutual consultation, then either the Purchaser or the Supplier may give notice to the other party of its intention to commence arbitration, as hereinafter provided, as to the matter in dispute, and no arbitration in respect of this matter may be commenced unless such notice is given. Any dispute or difference in respect of which a notice of intention to commence arbitration has been given in accordance with this Clause shall be finally settled by arbitration. Arbitration may be commenced prior to or after delivery of the Goods under the Contract. Arbitration proceedings shall be conducted in accordance with the rules of procedure specified in the SCC. 10.3. Notwithstanding any reference to arbitration herein, 4 Arb P No. 19/2024 (a) the parties shall continue to perform their respective obligations under the Contract unless they otherwise agree; and (b) the Purchaser shall pay the Supplier any monies due the Supplier. 10. GCC 10.2 of Special Conditions of Contract also says of settlement of Disputes in the following manner: “Settlement of Disputes The dispute settlement mechanism to be applied shall be as follows: (a) In case of Dispute or difference arising between the Purchaser and a domestic supplier relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with the Arbitration and Conciliation Act, 1996 and rules therein. The Arbitral Tribunal shall consist of three Arbitrators one each to be appointed by the Purchaser and the Supplier. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the parties, and shall act as presiding Arbitrator. In case of failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Chief Engineer Mechanical Engineering Department Kashmir. (b) In the case of a dispute with a Foreign Supplier, the dispute shall be settled in accordance with provisions of UNCITRAL (United nations Commission on International Trade Law) Arbitration Rules. The Arbitral Tribunal shall consist of three Arbitrators one each to be appointed by the Purchaser and the Supplier. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties, and shall act as presiding arbitrator. In case of failure of the arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the presiding Arbitrator shall be appointed by the President of the Singapore International Arbitration Centre.” 11. Vide notice dated 18.03.2024, respondent was called upon to nominate the second arbitration on its behalf within 30 days of the receipt of the notice. After the lapse of 30 days period, the petitioner in view of no communication from the respondent has approached this court for appointment of an independent arbitrator by way of filing this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 for resolution of disputes arisen between the parties. 5 Arb P No. 19/2024 12. It is submitted that since the respondent has failed to nominate the second arbitrator, the arbitration clause(s) providing for settlement of disputes between the parties pale into insignificance and thus, become, infructuous, and therefore, through the medium of this petition, the petitioner seeks appointment of a sole independent arbitrator. 13. It is also averred in the petition that an independent arbitrator is required to be appointed in this case as no serving officer of the department is eligible to be so appointed in view of the prohibition contained in Section 12(5) of Arbitration and Conciliation Act, 1996 read with Schedule 7 thereof. 14. In the above backdrop, the petitioner approached this court under Section 11(6) of the Arbitration and Conciliation Act, 1996 for reference of disputes/claims to an independent arbitrator. 15. Mr. Mohsin S. Qadri, learned Sr. AAG appearing for the respondents has vehemently argued against the appointment of arbitrator and detailed objections in this regard have been filed on behalf of the respondents.. 16. The fact that the petitioner has raised certain claims which, according to the petitioner, have not been addressed by the respondent, this Court is of the view that a dispute exists between the parties, which would require resolution as the court is of the view that the dispute has to be ultimately decided by an Arbitrator. 17. With consensus of the learned counsel for the parties, I appoint Mr. Justice J. P. Singh, Former Judge of High Court of J&K and Ladakh, C/o, H. No.57, Patta Poloura, Akhnoor Road, Jammu to act as the sole Arbitrator in this case, who shall proceed in the matter to decide the dispute between the parties and make an award in accordance with law after hearing the parties and charging the prescribed fee along with incidental expenses to be shared by the parties. 6 Arb P No. 19/2024 18. Parties may raise their claims and counter claims before the Arbitrator. 19. Registry to inform the Ld. Arbitrator accordingly. 20. With the above observation and direction, the petition stands disposed of. (TASHI RABSTAN) CHIEF JUSTICE SRINAGAR 06.03.2025 Raj Kumar Whether the order is speaking?: Yes/No. Whether the order is reportable?: Yes/No.