Delhi High Court
Arena Mobile Pvt. Ltd. Through Its ... vs Microsoft Corporation (India) ... on 9 August, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.08.2017
+ ARB.P. 362/2017
ARENA MOBILE PVT. LTD. THROUGH ITS DIRECTOR
..... Petitioner
versus
MICROSOFT CORPORATION (INDIA) PVT. LTD. & ORS.
..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Gaurav Sarin with Mr. Lalit Khanna and Ms. Supriya
Juneja, Advocates.
For the Respondents : Mr. Rajeev K. Agarwal with Mr. Sanjay K. Sharma,
Advocates.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
09.08.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner, by this petition, under Section 11 of the
Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the
Act') seeks appointment of an independent sole Arbitrator.
2. The petitioner was a retailer, inter alia, selling the products
manufactured by the respondent Company. Agreement dated
01.07.2015 was executed between the petitioner and the respondent
No.1, whereby, the petitioner was appointed as the Microsoft Priority
Reseller.
3. During the pendency of the said agreement, certain disputes had
arisen leading to the petitioner invoking the arbitration between the
parties and further to the filing of the present petition.
4. The arbitration clause, as agreed to and as contained in
Microsoft Priority Reseller Agreement dated 01.07.2015, reads as
under:-
"5.9 Any dispute arising out of or in connection with
this MPR Certification Agreement, including any
question regarding its existence, validity or
termination, shall be referred to and finally
resolved by arbitration in India in accordance with
the Arbitration and Conciliation Act 1996. The
Venue of the arbitration shall be at New Delhi. A
sole arbitrator shall be appointed by the Parties
but in case of a disagreement on the appointment
of sole arbitrator, the Parties hereto shall appoint
one arbitrator each and a third arbitrator shall be
appointed by the chosen the arbitrators. The
language of the arbitration shall be English. The
governing law of this MPR Certification
Agreement shall be the substantive law of India.
During such conciliation or arbitration, the
Parties shall, with the exception of those matters in
dispute, continue to perform their respective
obligations under the provisions of this MPR
Certification Agreement. This MPR Certification
Agreement shall be subject to the exclusive
jurisdiction of competent Courts at New Delhi
only."
5. Learned counsel appearing for the respondent No.1 submits that
he has no objection to appointment of an independent sole arbitrator.
6. Clause 5.9 stipulates that, in case, there is an agreement
between the parties on the name of the arbitrator, a sole arbitrator is to
be appointed. However, in case of a disagreement, the proceedings
would be conducted by an arbitral tribunal comprising of three
arbitrators, one each to be appointed by the parties.
7. Learned counsels for the parties are agreeable to appointment of
Mr. Rakesh Tiku, Sr. Advocate, as the Sole Arbitrator.
8. Accordingly, Mr. Rakesh Tiku, Sr. Advocate, (Mobile
No.9810025868) is appointed as the Sole Arbitrator to adjudicate the
disputes between the parties subject to the Arbitrator making the
necessary disclosure under Section 12 of the Act of not being
ineligible under Section 12(5) of the Act.
9. The Arbitrator shall adjudicate the claims of the petitioner and
the counter claims, if any of the respondents.
10. The Arbitrator shall fix his fee in consultation with learned
counsel for the parties.
11. The parties are at liberty to approach the learned Arbitrator for
elucidating the necessary disclosures and for further proceedings.
12. The petition is accordingly disposed of.
13. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
AUGUST 09, 2017
st
