Delhi High Court
Apex Buildsys Limited ... vs Prime Hitech Infrastructure ... on 21 September, 2017
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.09.2017
+ ARB.P. 469/2017
APEX BUILDSYS LIMITED (PREVIOUSLY KNOWN AS
M/S ERA BUILDSYS ..... Petitioner
versus
PRIME HITECH INFRASTRUCTURE LIMITED ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Lovkesh Sawhney, Advocate
For the Respondent : Mr. Amit Kumar, Advocate
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
21.09.2017
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner has filed this petition under Section 11 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as the
Act) seeking appointment of a sole arbitrator.
2. Petitioner had submitted an offer for the purposes of supply of
materials and erection, for erection of pre-engineered building for
Industrial Building Unit at SEZ Naidupeta Nellore, Andhra Pradesh.
3. A Letter of Intent dated 11.04.2011 was issued to the petitioner.
Consequent thereto, two work orders dated 12.04.2011 were issued.
4. As per the petitioner, the petitioner has not been fully paid for
the works executed.
5. The arbitration clause, as contained in the agreement between
the parties, reads as under:-
"20. DISPUTES AND ARBITRATION
Any difference, dispute, controversy or claim (dispute)
which may arise between the Parties hereto out of/ in
relation to or in connection with this agreement or as to
their Rights, duties or liabilities here under other than a
dispute for which provision is specifically made in this
contract, shall be settled by the parties by mutual
negotiation and agreement, if for any reason such dispute
cannot be resolved amicably by the parties hereto within
15 calendar days of dispute being notified by one party
or other, the same can be settled by way of arbitration
proceedings by three arbitrators, one to be nominated by
each of the Supplier and PHIL and the third to be
appointed by the two arbitrators so appointed and who
shall act as a chairman of the tribunal. The arbitration
proceedings shall be held in accordance with the
Arbitration and conciliation Act 1996 or any subsequent
enactment and amendment thereto. The venue of
arbitration shall be New Delhi. Cost of arbitration will
be shared equally between the employer and the supplier.
During the pendency of arbitration proceedings, the
Supplier shall not stop working. The Supplier shall
endeavor to finish the work within the stipulated time."
6. The petitioner has invoked the arbitration by letter dated
01.02.2017.
7. Learned counsel for the respondent submits that without
prejudice to his plea of limitation left to be raised and considered by
the Arbitral Tribunal, he has no objection to the appointment of
Arbitrator.
8. Learned counsel for the respondent submits that though the
Clause stipulates three arbitrators, however, he has received
instructions of his client to consent for appointment of a Sole
Arbitrator keeping in view the quantum of the claim.
9. Accordingly, with consent of parties, Mr. R. V Easwar, former
Judge of this Court, (Mobile No. 9560899997) is appointed as the sole
arbitrator to adjudicate the disputes between the parties subject to the
arbitrator making the necessary disclosures under Section 12 of the
Act of not being ineligible under Section 12(5) of the Act.
10. The arbitrator shall adjudicate the claims of the petitioner and
counter claims, if any, of the respondent.
11. The fee of the arbitrator shall be fixed by the arbitrator in
consultation with learned counsel for the parties.
12. Parties are at liberty to approach the Arbitrator for elucidating
the necessary disclosures and for further proceedings.
13. Petition is allowed in the above terms.
14. It is clarified that this Court has neither examined nor
commented upon the issue of limitation raised by the learned counsel
for the respondent. The said issue is left open to be considered and
decided by the learned Arbitrator, if so raised.
15. Order Dasti under the signatures of the Court Master.
SANJEEV SACHDEVA, J
SEPTEMBER 21, 2017
st
