Delhi High Court
Scorpio Engineering Private ... vs Indian Power Corporation ... on 18 July, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 18.07.2017
+ ARB.P. 406/2017
SCORPIO ENGINEERING PRIVATE LIMITED ..... Petitioner
versus
INDIAN POWER CORPORATION (HALDIA) LIMITED
& ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Manu Seshadri with Ms. Sahiba Ahluwalia, Mr. Arjun Syal
and Mr. Ishan Bisht, Advocates.
For the Respondent : Mr. Karun Mehta, Advocate for respondent No.1.
Mr. Ravi Kishore with Mr. Alok Kumar Srivastava, Advocates
for respondent No.2.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
18.07.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner has filed the present petition under Section 11 of the
Arbitration & Conciliation Act, 1996(hereinafter referred to as 'the Act').
2. By this petition, the petitioner seeks appointment of an independent
sole arbitrator to determine and adjudicate the disputes and claims between
the parties.
3. The petitioner Company was called upon by the respondent No.1
company to submit its bid for designing, engineering, manufacturing,
supply, erection, commissioning of coal handling project/system of the
3x150 MW Power Plant in Haldia, Purba-Medinipur, West Bengal.
4. The bid was accepted and, accordingly, an agreement was entered
into between the parties. Consequent to the agreement, a purchase order
was placed on the petitioner by the respondent No.2 on 20.12.2013.
5. The petitioner along with the respondent Nos.1 and 2 entered into an
agreement on 20.12.2013 and also agreed to the General Commercial
Terms and Conditions, which, inter alia, contain the arbitration agreement.
6. The arbitration agreement as contained in the General Commercial
Terms and Conditions reads as under:-
"29.0 ARBITRATION
29.1 In the event of any dispute or difference arising out of
the execution of the Order/Contract or the respective rights
and liabilities of the parties or in relation to interpretation of
any provision by the Seller/Contractor in any manner
touching upon the Order/Contract, such dispute or difference
shall (except as to any matter the decision of which is
specifically provided for therein) be referred to the
arbitration of the person appointed by the competent
authority of the Purchaser.
Subject as aforesaid, the provisions of Arbitration and
Conciliation Act, 1996 (India) and statutory modifications or
re-enactments thereof and the rules made there under and for
the time being in force shall apply to the arbitration
proceedings under this clause. The venue of arbitration shall
be at NOIDA/New Delhi/Delhi."
7. Learned counsel appearing for the respondent No.1 submits that
though, respondent No.1 had signed the General Commercial Terms and
Conditions, there were no obligations on the respondent No.1 to be
performed under the contract and, claims, if any of the petitioner, would be
only against the respondent No.2.
8. The issue raised by the respondent No.1 that there are no obligations
of the respondent No.1 to be performed qua the petitioner is not an issue
that arises for consideration in a petitioner under section 11 of the Act
seeking appointment of an Arbitrator. This would be subject matter of the
proceedings before the arbitrator. This Court while considering an
application under Section 11 of the Act, is not to examine the
maintainability of a claim or the defence of the respondents. This court is
required to ascertain as to whether there is an arbitration agreement
between the parties and as to whether there are disputes.
9. Admittedly, the parties have signed the General Commercial Terms
and Conditions, which contain the arbitration clause and admittedly, there
are disputes between the parties. The requirements of Section 11 of the Act
are, thus, satisfied.
10. The petitioner issued a notice dated 14.04.2017 calling upon the
respondents to pay the amount claimed by the petitioner, failing which, it is
stated that the disputes would be deemed to have arisen and referred to
arbitration in terms of Clause 29 of the General Terms and Conditions.
11. The notice dated 14.04.2017 was received by the respondents on
20.04.2017. This petition has been filed on 06.06.2017 and, admittedly, till
date, no arbitrator has been appointed by the respondents.
12. Learned counsel for the respondents submits that, without prejudice
to the defence of the respondents, they have no objection to the
appointment of an independent sole arbitrator by this Court to adjudicate
the disputes between the parties.
13. Accordingly, Mr. Justice Mukul Mudgal, (Retired) Former Chief
Justice of Punjab & Haryana High Court is appointed as the sole Arbitrator
to adjudicate the disputes between the parties. This is subject to the
Arbitrator making necessary disclosure under Section 12 of the Act of not
being ineligible under Section 12(5) of the Act.
14. The Arbitrator shall adjudicate the claims of the petitioner and
counter-claims, if any, of the respondent.
15. The Arbitrator shall fix his fee in consultation with learned counsel
for the parties.
16. The parties are at liberty to approach the learned Arbitrator for
elucidating the necessary disclosures and for further proceedings.
17. The petition is accordingly disposed of.
18. Order Dasti under signatures of the Court Master.
SANJEEV SACHDEVA, J
JULY 18, 2017
st
