BEFORE THE HON’BLE SOLE ARBITRATOR, JUSTICE

(RETD.) MR. S. K. AGARWAL

IN THE MATTER OF:-

M/s B.E. Contracts Pvt. Ltd. …… Claimant

Versus

M/s CRSSG-NCC(JV) …… Respondent

DOH: 21.08.2019
REJOINDER TO THE REPLY OF THE RESPONDENT TO THE
CLAIMANT’S APPLICATION UNDER SECTION 13 (2) OF
ARBITRATION AND CONCILIATION ACT, 1996

MOST RESPECTFULLY SHOWETH:

Preliminary Objections

At the very outset it is submitted that the claimant has not acted in contempt by

approaching the Tribunal with its application under Section 13. The claimant

by doing so has only acted in accordance with the provisions of law.

As per a joint reading of Section 13 and 16 of the Arbitration Act, if any party

has any apprehension about the independence or impartiality of the Tribunal

then the only option available to it is to approach the Tribunal itself with its

grievance. If such act of the claimant is termed as contempt by the respondent,

then it does not leave the claimant with any remedy for its grievance.

That if the act of the claimant of filing an application under Section 13 on the

basis of its reasonable apprehension is considered to be a contemptuous act,

then that will have the effect of making the Section 13 of the Arbitration Act as
redundant. It is further submitted that the power to declare a provision of an

Act as invalid lies only with the Parliament, High Court or the Supreme Court.

That it is most humbly submitted that this Tribunal has the power to dismiss the

application of the claimant but does not have the jurisdiction to take away the

right of filing the application which the respondent is attempting to get done by

alleging that the claimant has acted in contempt by approaching the tribunal

with its application.

Furthermore in clarification to the reference of establishment of a connection

between the Arbitrator and the Counsel of the Respondent, and other grounds

mentioned under the Application of Section 13(2) has been done in good faith,

not to make any personal comment upon the Arbitration Tribunal, rather

elaborating the circumstances which “give rise to justifiable doubts as to his

independence and impartiality” as per the requirement of Section 12(3)(b) read

with 13(2). Thus these references in the Application under Section 13(2) should

not read as any personal allegation upon the Arbitration Tribunal, instead an act

of exercising the legal right bestowed by the Arbitration and Conciliation Act,

1996 with utmost righteousness.

Parawise Reply:

1. That the contents of para no. 1 of the reply are wrong, hence denied. It is

denied that the contents of the application are incorrect.

2. That the contents of para no. 2 of the reply are wrong, hence denied. It is

denied that the contents of the application are incorrect or unfortunate.

The claimant by filing the application has only exercised its legal right

since it has reasonable apprehension about the independence and

impartiality of the tribunal. It is emphatically denied that the conduct of

the claimant during the Arbitration proceedings has been scandalous,

intimidating or contumacious. In fact it is the Respondent who is acting

in an intimidating matter by threatening the claimant by terming its act

of filing an application on the basis of the legal provisions as an act of

contempt.

3. That the contents of para no. 3 of the reply are wrong, hence denied. It is

denied that the claimant’s intent is to intimidate or scandalize the

Hon’ble Tribunal. It is further denied that it is the aim or intent of the

claimant to lower the authority of the tribunal, or to prejudice or to

interfere with the due course of the present arbitration proceedings or

obstruct the administration of justice. It is submitted that the claimant is

merely exercising its legal right by filing the application before the

Hon’ble Tribunal and by doing so it is not doing in contempt. It is

further denied that the claimant is in any way attempting to avoid

adjudication of the issues by making frivolous allegations. It is denied

that the claimant has made any frivolous allegations or is trying to stall

the arbitration proceedings.

4. In reply to the contents of para no. 4 it is emphatically denied that the

contents of the application are baseless or scandalous. It is further

submitted that the respondent is trying to intimidate the claimant by

stating in its reply that it reserves the right to file proceedings for

initiating contempt proceedings against the claimant and its officers.

5. The contents of para no. 5 are not relevant to the present matter. Though

they do not merit any reply but since allegations are made against the

claimant, the contents thereof are denied in totality. It is denied that the

claimant had earlier made false or frivolous allegations or made progress

of the arbitration an impossibility. It was in fact the previous arbitrator

himself who had adjourned the matter sine die without fixing any date.

It is emphatically denied that the claimant had raised unsubstantiated

allegations against the previous arbitrator. The rest of the contents are

matter of record.

6. The contents of para no. 6 are matter of record. It is however again

submitted that that there is no provision under law putting restrictions to

the effect that two witnesses cannot plead in evidence identical set of

facts.

7. The contents of para no. 7 are matter of record.

8. In reply to the contents of para no. 8 it is submitted that the claimant has

neither appealed against nor challenged the order of the Hon’ble

Tribunal. The claimant has only exercised its right by approaching the
 Hon’ble Tribunal by filing an application under Section 13 since it has

reasonable apprehensions about the independence and impartiality of the

Hon’ble Tribunal.

9. That the contents of para no. 9 of the reply are wrong, hence denied. It is

denied that the claimant has made baseless allegations. It is further

denied that the claimant is attempting to avoid the procedure devised or

attempting to do indirectly what it cannot do directly.

10. The contents of the para no. 10 are a matter of record.

11. That the contents of para no. 11 of the reply are wrong, hence denied. It

is denied that the claimant does not have the right to take recourse to

Section 13(2) of the Act. It is emphatically denied that the claimant is

trying to avoid complying with every order of the Hon’ble Tribunal. It is

submitted that the claimant has complied with each and every order of

the Tribunal. It is denied that the claimant is trying to disrupt the present

arbitration proceedings. It is further denied that the claimant tried to

disrupt the previous arbitration proceedings. The rest of the contents

w.r.t. the recording of the proceedings dated 09.07.2019 since

infructuous now, require no reply. It is however submitted that the

claimant has no objection of the proceedings are video graphed at the

cost of the respondent but it is not willing to bear such expenses.

12. The contents of para no. 12 need no reply.

 13. The contents of para no. 13 of the reply are wrong, hence denied. It is

denied the application is liable to be dismissed.

Delhi

Dated: 21.08.2019 Applicant / Claimant

Through

Counsel

BEFORE THE HON’BLE SOLE ARBITRATOR, JUSTICE (RETD.)

MR. S. K. AGARWAL

IN THE MATTER OF:-

M/s B.E. Contracts Pvt. Ltd. …… Claimant

Versus

M/s CRSSG-NCC(JV) …… Respondent

AFFIDAVIT

I, Prakash Joshi S/o Mr. Bhairav Dutt Joshi, aged about 38 years r/o RZ 11, 2 nd
Floor, Gali No. 3, Sita Puri, Old Dabri, Near Janakpuri, Delhi - 110045, do
hereby solemnly affirm and declare as under:

1. That the deponent is the AR of the Claimant Company and is conversant

with the facts of this case and competent to swear this affidavit.
 2. That the deponent has filed the accompanying rejoinder, contents of
which have been drafted by the counsel under the instructions of the
deponent, and the same are true and correct. The same may be read as a
part and parcel of this affidavit, as they have not been repeated herein for
the sake of brevity.

Deponent
Verification:

Verified at Delhi on this 21st day of August, 2019 that the contents of para no. 1
and 2 of this affidavit are true and correct to the best of my knowledge and
belief.

Deponent