Delhi High Court
Ravi Infrastructure & Projects vs Kss Petron Private Limited on 3 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 3rd August, 2016
+ Arb.P.No.341/2016
RAVI INFRASTRUCTURE & PROJECTS ..... Petitioner
Through Mr.Rajiv Bhatnagar, Adv. with
Mr.Aseem Chaturvedi &
Mr.Jeevan Ballabh Panda, Advs.
Versus
KSS PETRON PRIVATE LIMITED ..... Respondent
Through None
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The petitioner has filed the present petition under Section
11(5) and 11(6) of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as the "Act") seeking for an appointment of
sole Arbitrator to adjudicate the disputes pending between the
parties in terms of Clause 45 of the Work Order bearing No
KSSIIPL/EPC-02/ONGC/Ukon-PGP dated 26th October, 2010 ("Work
Order"). As per the terms of Clause 45 of the Work Order, the
petitioner by its notice dated 22nd March, 2016 nominated Retired
Judge of the Supreme Court to adjudicate upon the disputes and
differences between the parties. However, the respondent disagreed
with the said nomination and proposed the name of Mr. Sanjay
Goyal of Quantum Meriut Consultants instead.
2. The petitioner did not agree to the nomination proposed by the
respondent and as such in view of the failure of the parties to agree
on the sole Arbitrator, the petitioner has filed the present petition.
3. The brief facts of the case are that in the year 2010, Oil &
Natural Gas Corporation Limited (ONGC) invited bids inter alia for
services of main pipe laying (20" & 16") for Up-gradation of Konaban
GGS and Pipeline Grid Project of Tripura Asset (UKon-PGP). The
respondent successfully bid for the same and was awarded the
Contract by ONGC.
4. On 17th February, 2010 the respondent floated tender for sub-
contracting the work of rendering services of main pipe laying (20"
& 16") for Up-gradation of Konaban GGS and Pipeline Grid Project of
Tripura Asset (UKon-PGP) and the petitioner was declared as the
successful bidder.
5. The respondent issued a Work Order bearing WO No.
KSSIIPL/EPC-02/ONGC/Ukon-PGP/WO-11 to the petitioner on 26th
October, 2010.
6. The case of the petitioner is that even after the expiry of two
and half years the respondent had not only not provided a clear
Right of Ussage (ROU) to the petitioner to commence the work
under the Work Order but also that the farmers and landowners over
whose land the pipeline was to be laid down, were agitated and
there existed immense unrest due to non-payment of land/ crop
compensation/ and inadequate land/ crop compensation and the
petitioner under these circumstances had to stop further work at the
site in view of continued failure and breach on the part of the
respondent to address the issues of non-availability of clear-front,
mounting costs of idle manpower and machinery and non-payment
against the duly acknowledged /registered Bills.
7. The petitioner submits that on 4th April, 2013 a joint meeting
of the representatives of the respondent and the petitioner was held
at Gurgaon. It was inter alia recorded that the overdue amount of
Rs. 53 lacs towards service tax liability be released immediately by
the respondent to the petitioner. In October, 2013 another joint
meeting of the representatives of the respondent and the petitioner
was held at Agartala wherein the respondent inter alia acknowledged
and admitted to the additional work executed by the petitioner at
the request of the respondent for which quantity, rates and amounts
payable were duly recorded with the reservation of the petitioner. It
is alleged by the petitioner that in October, 2014 the respondent
made a part payment of a sum of Rs. 5,00,000/- against its total
liability of Rs. 22,83,45,309/- plus interest @ 18% till realization.
8. In the absence of any positive response from the respondent,
therefore the petitioner in November, 2015 invoked the dispute
resolution mechanism contained in Clause 45(a) of the Work Order
[Resolution/Settlement through mutual discussion and negotiation]
and again on 9th December, 2015 joint meeting was held between
the representatives of the respondent and the petitioner in the
presence of the representatives of ONGC at Delhi. On 21 st
December, 2015 the respondent sent an e-mail to the petitioner
requesting for their statement of accounts and other documents. The
petitioner sent an e-mail on 23rd December, 2015 to the respondent
placing on record the discussions that took place in the meeting
dated 9th December, 2015 and also provided the respondent with the
statement of accounts and other documents that were sought.
9. It is stated by the petitioner that another joint meeting was
held on 2nd February, 2016 between the representatives of the
respondent and the petitioner in the presence of the representatives
of owner at ONGC's office at Delhi. The respondent vide its e-mail
dated 5th February, 2016 sent minutes of the meeting for the
meeting held on 2nd February, 2016 and requested the petitioner to
sign the said minutes of the meeting. The petitioner vide its e-mail
dated 11th February, 2016 denied the contents of the respondent's
e-mail dated 5th February, 2016. On 25th February, 2016 the
respondent denied the claims of the petitioner and raised a
purported counter claim of Rs.9.26 crores against the petitioner.
10. The petitioner therefore invoked the arbitration agreement
contained in Clause 45(b) of the Work Order and referred the
disputes and differences to arbitration for adjudication and
nominated Retired Judge of the Supreme Court. The respondent on
20th April, 2016 responded to the said notice invoking arbitration
denying the contents therein and instead proposed the name of Mr.
Sanjay Kumar Goyal of Quantum Meruit Consultants.
11. Despite of service, no one appears on behalf of the
respondent. The Arbitrator appointed by the petitioner is not
acceptable to the respondent, however, the respondent as per
communication exchanged between the parties does not dispute that
there is an agreement between the parties in which an arbitration
clause exists and the disputes have also arisen between the parties.
12. The respondent despite of service has chosen not to appear.
Under these circumstances, the prayer made in the present petition
is allowed. Justice A.P. Shah, former Chief Justice of this Court
(Mobile No. 9910160007) is appointed as sole Arbitrator to
adjudicate the disputes arising out of the agreement between the
parties as mentioned in the present petition. The parties are also
allowed to file their respective claims and counter-claims before the
Arbitrator.
13. The Arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation (Amendment) Act, 2015 before
commencing the arbitration. The fees of the learned Arbitrator shall
be in terms of the schedule of the amended Act. The parties to
appear before the Arbitrator on 23rd August, 2016 at 4.00 p.m. for
directions.
14. The petition is accordingly disposed of.
15. Copy of this order be given dasti to the learned counsel for the
petitioner and a copy thereof be delivered to the learned Arbitrator
forthwith.
(MANMOHAN SINGH)
JUDGE
AUGUST 03, 2016
