Delhi High Court
Jakson Power Pvt Ltd. vs Vikram Solar Pvt. Ltd. on 17 September, 2021
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 17.09.2021
+ ARB.P. 693/2021
JAKSON POWER PVT LTD. ..... Petitioner
Through Mr.Vaibhav Mishra & Mr.Ekansh
Mishra, Advs.
versus
VIKRAM SOLAR PVT. LTD. ..... Respondent
Through Ms.Mamta Tiwari, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. The present petition has been filed by petitioner seeking appointment
of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration
and Conciliation Act, 1996.
2. Petitioner, a private limited company, with the object of installing,
establishing, developing, commissioning and maintaining two Solar Power
Plants, each of 10 MW(AC) capacity [as awarded under PPA with NTPC
Vidyut Vyapar Nigam (NVVN)] entered into an agreement with the
respondent to purchase Solar Photo Voltaic modules under Special Purchase
Agreement dated 06.08.2012. As per the agreement, respondent undertook
to sell, supply and deliver SPV modules in Rajasthan of technical
specification amounting to Rs.100.625 crores between September 2012 to
January 2013.
3. As per the version of petitioner, he informed the respondent that his
products are sub-standard quality and they are not even generating minimum
guaranteed output wattage. Petitioner also engaged an independent firm "PV
Diagnostics" to inspect the specification and condition of the respondent's
modules whereby as per its report dated 05.07.2018 confirmed that
respondent's modules are defective, show full compound, partial cracks,
snail trail and bus bar corrosion in several places. The report of the PV
Diagnostics was supplied to the respondent in the month of September 2018.
4. It is submitted that in response to the complaints of the petitioner,
respondent conducted various site inspections but failed to repair the
defective modules or replace them, which has resulted in petitioner being
unable to achieve the minimum guaranteed power output which causes
financial losses to the petitioner.
5. Counsel for the petitioner submits that in such circumstances,
petitioner was constrained to send legal notice dated 17.02.2020 to the
respondent for breach of Article 10 of the Agreement. Further submitted that
petitioner called upon the respondent to rectify their breaches and replace
the faulty modules within a period of two weeks of the receipt of the notice.
However, respondent sent a reply dated 13.05.2020 wherein refuted
allegations alleged by the petitioner and stated that the reason for low
performance was mishandling and mismanagement at the hands of the
petitioner.
6. Thereafter, petitioner sent notice dated 05.08.2020 invoking
arbitration as per Clause 14 of the Agreement, read with section 21 of the
Arbitration and Conciliation Act, 1996 and nominated its Arbitrator, to
which no response has been given by the respondent till date.
7. During the course of hearing, learned counsel appearing for the
parties pressed that this Court may appoint Arbitrator to adjudicate the
disputes pending amongst the parties.
8. During the pendency of the present petition, parties tried to settle their
disputes out of the court, however, could not reach to some conclusion.
9. Accordingly, Justice (Retd.) A.K. Sikri (Mobile: 9818000300),
former Judge of the Hon'ble Supreme Court, is appointed as the sole
Arbitrator to adjudicate the dispute between the parties.
10. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
11. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
12. With aforesaid directions, the present petition is, accordingly,
disposed of.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 17, 2021
ab
