Calcutta High Court
Gantrex India Crane Rails Private ... vs Simplex Infrastructure Limited ... on 19 April, 2023
OD-2
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
AP/86/2023
GANTREX INDIA CRANE RAILS PRIVATE LIMITED
VS
SIMPLEX INFRASTRUCTURE LIMITED AND ORS.
BEFORE:
The Hon'ble JUSTICE SABYASACHI BHATTACHARYYA
Date : 19th April, 2023
Appearance:
Mr. Srijib Chakraborty, Adv.
Mr. Dipankar Saha, Adv.
Mr. S. K. Das, Adv.
...for the petitioner
Mr. Snehashis Sen, Adv.
...for the respondents
The Court:- Learned counsel for the petitioner contends that in view of the
specific arbitration clauses in the two purchase orders in question, which arise
from a single composite work, an arbitrator ought to be appointed, as the
invocation under Section 21 of the Arbitration and Conciliation Act, 1996 has
failed to evoke any agreement between the parties on the arbitrator.
Learned counsel appearing for the respondents submits that the present
composite application under Section 11 of the 1996 Act is not maintainable in
law.
First, it is submitted that the invocation was common for different
purchase orders, which were independent and distinct on point of time.
Also, the composite applications cannot be clubbed together, since there
are distinct and different purchase orders, all having separate arbitration
clauses.
In this context. learned counsel for the respondents places reliance on the
judgment of Duro Felguera reported at (2017) 9 SCC 729. By placing particular
reliance on paragraph no. 22 of the said judgment, learned counsel contends
that if there are separate subject matters and separate and distinct works
covered by the separate contracts, each containing separate arbitration clauses,
there cannot be a composite invocation under Section 21 and/or a single
application under Section 11 of the 1996 Act.
Learned counsel further places reliance on paragraph number 42 of the
judgment where the Supreme Court took into consideration the judgment of
Chloro Controls India Private Limited and distinguished the case at hand from the
said report in the line that in Chloro Controls (supra) there was a principal parent
agreement, under and in connection with which the subsequent agreements
were entered into.
It is submitted that unless there is a parent agreement, the arbitration
clauses are distinct and different and cannot be clubbed together.
Learned counsel for the respondents reiterates that in the present case
there is no parent agreement as such.
Learned counsel appearing for the petitioner opposes such contention and
submits that the purchase orders, although separate, refer to the same contract
number.
Upon hearing learned counsel for the parties, it transpires that although
the different purchase orders clubbed together are distinct and different in
identity, both the said purchase orders pertain to the same work. That apart,
although issued at different points of time, it cannot be said strictly that the
subject matters of the two are dissimilar or that they contemplate separate and
distinct works. Although on a hyper-technical consideration the purchase orders
contemplated different bulks of orders, but in effect and for all practical
purposes, the said orders were in aid of the same work process.
Moreover, there is no specific bar in the statute itself to a composite
invocation under Section 21 of the 1996 Act being issued. If there is a dispute
and difference between the parties, if the bundle of facts which give rise to the
same chain of cause of action is the same for all the said agreements, there is no
reason why arbitrators/arbitrator ought not to be appointed for dealing with and
deciding the disputes arising out of all such connected agreements. Moreover, in
the present case, the language of the arbitration clauses in all the purchase
orders is similar; rather, they are almost identical.
In view of the above discussions, there cannot be any reason to hold that
the invocation under Section 21 of the 1996 Act was vitiated by any illegality or
irregularity.
However, learned counsel for the respondents is justified in submitting
that at least for the purpose of the records, separate applications under Section
11 ought to have been filed by the petitioner. Although agreeing in principle with
such suggestion, I am of the opinion that unnecessary technicalities, mandating
the petitioner to withdraw the present petition and file separate applications
under Section 11 of the 1996 Act, would enure to the benefit of none of the
litigants. The said defect, if any, is curable, to say the least, by directing the
petitioner to deposit the additional Court fees as would be deemed fit for
separate applications under Section 11 of the 1996 Act.
In such view of the matter, AP/86/2023 is disposed of by appointing Mr.
Siddhartha Banerjee [Mobile no.:-9830298922], an Advocate practising in this
Court, as the sole Arbitrator to resolve the dispute between the parties
pertaining to the purchase orders referred to in the present application under
Section 11 of the Arbitration and Conciliation Act, 1996, subject to obtaining his
declaration/consent under Section 12 of the 1996 Act.
However, as a pre-condition for this order to take effect, the petitioner
shall deposit the additional Court fees equivalent to that of separate applications
under Section 11 of the 1996 Act for the different purchase orders in respect of
which appointment has been sought in the application. Such deposit shall be
made by the petitioner within an outer limit of April 21, 2023. In default,
however, this order shall stand automatically revoked and the matter shall be
placed in the list for further hearing.
(SABYASACHI BHATTACHARYYA, J.)
S.Bag
