M/S Era Infra Engineering Ltd. ... vs Bharat Heavy Electricals ...
2017 Latest Caselaw 7480 Bom

        J-mca130.17.odt                                                                                                   1/4 


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


              MISC. CIVIL APPLICATION (Arbitration) No.130 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


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri S.V. Bhutada, Advocate for the Applicant.
        Shri H.V. Thakur, Advocate for the Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                      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

J-mca130.17.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 10.3.2016 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 5 th March, 2016

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

J-mca130.17.odt 3/4

and nothing 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

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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