J-mca131.17.odt 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
MISC. CIVIL APPLICATION (Arbitration) No.131 OF 2017
M/s. Era Infra Engineering Ltd.,
A company incorporated under the
Provisions of the Companies Act, 1956,
Having its Head Office at C-56/41,
Sector 62, Noida,
Uttar Pradesh- 201 303. : APPLICANT
...VERSUS...
Bharat Heavy Electricals Limited,
Having its registered Office at BHEL House,
Siri Fort, New Delhi, through
Power Sector Western Region,
Shreemohini, 345, Kingsway,
Nagpur. : RESPONDENT
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Shri S.V. Bhutada, Advocate for the Applicant.
Shri H.V. Thakur, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
nd SEPTEMBER, 2017.
DATE : 22
ORAL JUDGMENT :
1. Heard.
2. Rule. Rule made returnable forth. Heard finally by consent.
3. So far as the arbitration agreement is concerned, there is no ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:11:04 ::: J-mca131.17.odt 2/4 dispute. There is an arbitration clause, clause 2.14 to the tender document and it makes it clear that all disputes between the parties to the contract arising out of or in relation to the contract except those for which the decision of the engineer or any other person has been expressed by contract to be final and conclusive, would be referred to the sole arbitration of the General Manager or his nominee, but after exchange of notices between the parties. In the instant case, there has been exchange of notices between the parties and the reply given by the respondent dated 18.7.2014 to the notice of the applicant shows that almost all the claims arising from the contract between the parties have not been admitted by the respondent. There is, however, objection of the respondent as expressed on its behalf by its learned counsel. He submits that during the pendency of this proceeding, a final bill was submitted by the applicant and it was for the amount which was higher than the total of all claims raised in the notice of the applicant dated 7.10.2013 and, therefore, the final bill could not be a subject matter of arbitration. He submits that the final bill is under process and as soon as the compliances required of the applicant are made by the applicant, the final bill would be settled by the respondent. According to the learned Senior Counsel for the applicant, all the compliances have been made and the higher amount of final bill is only on account of inclusion of the interest claimed on the demands already made and some ancillary claims and nothing ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:11:04 ::: J-mca131.17.odt 3/4 more.
4. These arguments show that there is also a dispute on the compliances made or not made.
5. All in all, there is a dispute between the parties and as per the arbitration clause, it is arbitrable. The mechanism provided in the arbitration clause has failed. However, all questions would have to be kept open and they are kept open accordingly to be decided appropriately by the learned arbitrator. Therefore, I am of the view that this is a fit case for appointing the arbitrator.
6. The application is allowed.
7. The dispute between the parties is referred to arbitration.
8. By consent, Hon'ble Shri Justice (Retired) A.P. Deshpande is appointed as the Arbitrator.
9. Both parties shall deposit in this Court amount of Rs.15,000/- each as processing fees within two weeks and the reference to the learned arbitrator be made only after the processing fees are deposited by both the sides.
10. In case the applicant fails to deposit within the stipulated time the processing fees of Rs.15,000/-, the application shall stand dismissed without reference to the Court.
11. In case the respondent fails to deposit in this court within stipulated time the processing fees of Rs.15,000/-, the respondent shall ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:11:04 ::: J-mca131.17.odt 4/4 be liable to pay penal interest at the rate of 2% per month on the amount of Rs.15,000/- and same shall be payable to the applicant, irrespective of result of the arbitration.
JUDGE okMksns ::: Uploaded on - 26/09/2017 ::: Downloaded on - 27/09/2017 01:11:04 :::