Manoj Kumar Ohri JUDGMENT
Manoj Kumar Ohri, J.
1. By way of ARB.P.628/2023 filed under Section 11(6) and (8) of the Arbitration and Conciliation Act, 1996 (hereafter, the 'A&C Act'), the petitioner seeks appointment of an independent and impartial arbitrator as well as declaration to the effect that the respondent's nomination and appointment of the arbitrator is contrary to the procedure stipulated in the Letter of Intent executed between the parties.
Petitioner has also sought interim relief by way of OMP(I)(COMM) 203/2023 filed under Section 9 of the A&C Act, thereby seeking direction to the respondent to deposit the amount as per final bill dated 22.11.2022.
2. Facts in a nutshell are that on 19.03.2021, respondent issued Letter of Intent (hereafter, 'LOI') to the petitioner to carry out 'Civil and Structure Works' for its proposed 'Metro Cancer Building at Sector-16A, Faridabad, Haryana'. The time for completion was 12 months from the date of the issuance of the LOI.
3. Petitioner claims that it had completed the project timely and to the satisfaction of the respondent however, it did not receive the entire payment against the final RA Bill dated 22.11.2022 for a gross amount of Rs. 12,99,04,110/-. It is claimed that an amount of Rs. 3,40,07,068/-remains to be paid by the respondent, which include amounts due towards pending Bill Nos. 20 and 21, security deposit, retention money etc.
4. It is contended that as per clause 5.2 of the LOI, payments were required to be released by the respondent within 90 days from the date of receipt of the Bill however, despite various meetings and reminders, the needful was not done.
5. Petitioner issued legal notice dated 07.04.2023, thereby demanding the balance amount, to which respondent sent its reply dated 05.06.2023, whereby petitioner was informed that respondent had appointed Mr. Justice S.N. Agarwal (Retd.) as the sole arbitrator. Petitioner objected to the appointment of the arbitrator vide rejoinder notice dated 12.06.2023, and also communicated its objection to the learned arbitrator.
6. In the aforesaid backdrop, petitioner contends that respondent's act of appointing the learned arbitrator is not as per the procedure stipulated in the LOI which, as per clause 31.14 provided that the sole arbitrator is to be appointed by the Management Review Committee in consultation with the petitioner/contractor.
7. Respondent has taken a preliminary objection to the maintainability of the present petition on the ground of territorial jurisdiction. It is contended that as per Clause 31.16 of the LOI, Faridabad was stated/decided as the place of arbitration, due to which the jurisdictional court for entertaining the Section 11 petition would be the High Court of P&H and not the Delhi High Court.
8. In response, learned counsel for the petitioner submitted that since LOI was signed by it on Delhi, the learned arbitrator is based in Delhi, and the fact that preliminary hearing was held by the arbitrator in Delhi, this c........