Sepio Products Pvt. Ltd vs Denlob Technologies Pvt. Ltd
2022 Latest Caselaw 9753 Bom

          Digitally
          signed by
          UTKARSH
UTKARSH   KAKASAHEB
KAKASAHEB BHALERAO
BHALERAO Date:
          2022.09.29
          12:39:09
          +0530
                                                                                      16.arbap.5.2022.doc




                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       ORDINARY ORIGINAL CIVIL JURISDICTION


                                       ARBITRATION APPLICATION NO. 5 OF 2022


                       Sepio Products Pvt. Ltd.                      .. Applicant
                                 Vs.
                       Denlob Technologies Pvt. Ltd.                 .. Respondent


                       Adv. Mr. Vicky Singh a/w Adv. Mr. Meit Sampat i/b Little & Co. for the
                       Applicant.


                                                          CORAM:- B. P. COLABAWALLA,J.

DATE :- SEPTEMBER 26, 2022.

P. C.:

1. The above Arbitration Application is filed under Section 11

of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration

Act") seeking the constitution of the Arbitral Tribunal.

2. The disputes between the Applicant and the Respondent

have arisen because of non-payment of supply of goods by the Applicant

to the Respondent. In the facts of this case, before the Respondent-

Company purchases any goods of the Applicant, it has to accept the

terms and conditions on the website of the Applicant i.e.

Utkarsh page 1 of 5

16.arbap.5.2022.doc

www.sepioproducts.com which contains an Arbitration clause (clause

28 thereof). Clause 28 reads thus:

"28. Any dispute and/or disagreement, arising under these Terms shall be settled through consultation and conciliation process among the Company and the Buyer. If the dispute cannot be amicably settled between the Parties within one month after a request to settle the dispute amicably has been made to the other Party, the dispute or difference shall be referred to arbitration under the Arbitration and Conciliation Act 1996 and any amendment thereto. The arbitral tribunal shall comprise of a sole arbitrator nominated by the Company. The Venue of arbitration shall be Mumbai, India and the language shall be English."

3. As can be seen from this clause, the power to appoint the

Sole Arbitrator is with the Applicant. The Applicant therefore

nominated Advocate Mr. Kunal Vaishnav as the Sole Arbitrator to

decide the disputes and differences between the parties. However, the

Sole Arbitrator, by order dated 23rd November 2021, terminated the

arbitration proceedings on the ground that the Applicant could not

unilaterally constitute the Arbitral Tribunal. This finding was given in

the light of the judgment of the Hon'ble Supreme Court in Perkins

Eastman Architects DPC & Anr. VS HSCC (India) Ltd. reported at in

2019 SCC Online 1517. It is because of this termination the present

Application under Section 11 is filed seeking the appointment of a Sole

Utkarsh page 2 of 5

16.arbap.5.2022.doc

Arbitrator.

4. The Respondents have been duly served as reflected in the

order dated 23rd August, 2022 as well as the affidavit of service tendered

today dated 12th September, 2022. Despite service, none have appeared

on behalf of the Respondent.

5. In these circumstances and considering what is stated in

the Section 11 Application and which is not controverted by the

Respondent, the following order is passed:

(a) Mrs. Sneha Phene, an advocate of this Court, is hereby appointed

to act as a Sole Arbitrator to decide the disputes and differences

between the Applicant and the Respondent arising out of and/or

in connection with and/or in relation to the Purchase Order No.

1920000470 and Purchase Order No. 1920001059.

(b) A copy of this order will be communicated to the learned Sole

Arbitrator by the advocates for the Applicant within a period of

one week from today.

(c) The learned Sole Arbitrator is requested to forward his Statement

of Disclosure under Section 11(8) read with Section 12(1) of the

Utkarsh page 3 of 5

16.arbap.5.2022.doc

Arbitration Act to the advocates for the Applicant so as to enable

them to file the same in the Registry of this Court. The Registry of

this Court shall retain the said Statement on the file of this

Application and a copy of the same shall be furnished by the

advocates for the Applicant to the Respondent.

(d) The parties shall appear before the learned Sole Arbitrator on

such date and at such place as she nominates to obtain

appropriate directions with regard to fixing a schedule for

completing pleadings etc. The Arbitral Tribunal shall give all

further directions with reference to the arbitration and also as to

how it is to proceed.

(e) Contact and communication particulars shall be provided by all

sides to the learned Sole Arbitrator within a period of one week

from today. This information shall include a valid and functional

email address as well as mobile numbers of the respective

advocates.

(f) The Sole Arbitrator shall charge her fees as per the 4th Schedule

of the Arbitration and Conciliation Act, 1996 read with the

Bombay High Court (Fee payable to Arbitrators) Rules, 2018.

      Utkarsh                                                       page 4 of 5
                                                               16.arbap.5.2022.doc


(g)     The Arbitral costs and fees of the Arbitrator will be borne by the

parties equally and will be subject to any final Award passed by

the Tribunal. If the Respondent does not appear before the

Tribunal then all the arbitral costs and the fees of the arbitrator

shall be borne, at the first instance, by the Applicant, subject to

the final Award that may be passed by the Tribunal in that

regard.

6. The above Section 11 Application is disposed of in the

aforesaid terms. However, there shall be no order as to costs.

7. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                         ( B. P. COLABAWALLA, J. )




      Utkarsh                                                      page 5 of 5