Utkarsh India Limited vs Union Of India
2021 Latest Caselaw 324 Cal/2

OD-8
                                  ORDER SHEET

                                  AP/770/2018

                       IN THE HIGH COURT AT CALCUTTA
                        Ordinary Original Civil Jurisdiction
                                 ORIGINAL SIDE

                            UTKARSH INDIA LIMITED
                                  VERSUS
                               UNION OF INDIA

  BEFORE:
  The Hon'ble JUSTICE DEBANGSU BASAK
  Date : 24th March, 2021.

  (Via Video Conference)
                                                                        Appearance:
                                                         Mr. Jishnu Chowdhury, Adv.
                                                             Mr. Dwip Raj Basu, Adv.

                                                        Mr. Arun Kumar Mishra, Adv.
                                                             Mr. Hemant Tiwari, Adv.


       The Court: In this application under Section 11(6) of the Arbitration and

Conciliation Act, 1996, the petitioner seeks appointment of an Arbitrator.

       Learned Advocate appearing for the petitioner relies upon the judgment and

order dated March 8, 2021 passed by the Delhi High Court in ARB.P. 553/2020

(M/s. T.K. Engineering Consortium Pvt. Ltd. Vs. The Director (Projects) Rites Ltd. &

Anr.) and the judgment and order dated March 17, 2021 passed by this Court in

AP 297 of 2018 [Techma Engineering Enterprises Pvt. Ltd. Vs. Union of India

Through General Manager (Engineering) South Eastern Railway] in support of his

contentions.

       Learned Advocate appearing for the petitioner submits that, in the facts of

the present case, the Court may be pleased to appoint an Arbitrator.

       The respondent is represented.

The petitioner participated in a tender undertaken by the respondent. The

petitioner was successful in such tender process. A purchase order dated June

23, 2017 was placed upon the petitioner. The petitioner effected supplies in terms

of such purchase order for the period from November 21, 2017 to December 26,

2017. The petitioner raised 76 invoices upon the respondent for an aggregate

value of Rs.14,05,67,805/-. The respondent made part payments leaving a sum

of Rs.84,35,429/- payable. The petitioner invoked the arbitration clause on

August 16, 2018. The respondent by a letter dated August 21, 2018 refused to

accept the nominee of the petitioner.

The defence of the respondent is the same as that taken in Techma

Engineering Enterprises Pvt. Ltd. (supra). Such defence was considered and not

accepted therein. In view of the ratio of Techma Engineering Enterprises Pvt.

Ltd.(supra), the present application is required to be allowed.

In M/s. T.K. Engineering Consortium Pvt. Ltd. (Supra), the Delhi High Court

considered similar provisions of contract and is of the view that the defence of

non-arbitrability is not available to the respondent in the facts of that case.

In such circumstances, it would be appropriate to appoint Chief Justice Mr.

Bhaskar Bhattacharya (Retired) as Arbitrator in terms of the arbitration

agreement between the parties.

Learned Arbitrator is at liberty to fix his remuneration to be shared by the

parties equally. The parties will bear the cost and expenses of the arbitration in

equal share.

The parties are at liberty to inform the learned Arbitrator of this order.

AP 770 of 2018 is disposed of accordingly.

(DEBANGSU BASAK, J.)

R.Bhar