Delhi High Court
Interglobe Technology Quotient ... vs Shree Sati Travels Pvt Ltd on 4 February, 2022
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 04.02.2022
+ ARB.P. 971/2021
INTERGLOBE TECHNOLOGY QUOTIENT PVT LTD.
..... Petitioner
Through: Mr. Deepanjan Dutta, Advocate
Versus
SHREE SATI TRAVELS PVT LTD. ..... Respondent
Through: Nemo.
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 the petitioner under Section 11
(4) of the Arbitration and Conciliation Act, 1996 seeking appointment of
Arbitrator in view of the failure of respondent to give its consent for the
appointment of sole arbitrator in terms of Clause 8 (i) of the Subscriber
Agreement dated 01.04.2010 executed between the parties.
2. As per office report, notice sent to respondent through ordinary
process has been received back with the report 'unserved person is out of
station" and service report for the process sent through courier and
electronic modes is 'awaited'. However, process sent through speed post has
been received back with the report "refused".
3. An affidavit of service dated 24.12.2021 has been placed on record by
the petitioner according to which process sent through courier is not
delivered as "refused to accept" and e-mail sent to respondent also stands
delivered.
4. In view of the aforesaid position, this Court finds that respondent is
duly served. However, none has appeared on its behalf. It seems respondent
has nothing to oppose in the present petition.
5. Petitioner claims to be in the business of distribution of computerized
reservation system owned and operated by Travelport International
Operations limited - "Galileo System". According to petitioner, respondent,
who is engaged in business of travel and tourism related services had
approached the petitioner in the year 2010 for using the "Galileo System"
for booking and the parties entered into the Subscriber Agreement No.
ITQPL/BOM/022-613 dated 01.04.2010, which was amended from time to
time as part of the overall understanding.
6. According to petitioner, in terms of the aforesaid agreement under
Clause 1 and Clause 2.2 (a) thereof, respondent was under contractual
obligation to use the said system for all its operations in India. On
01.01.2012, parties entered into an addendum agreement being "Addendum
No. l to Subscriber Agreement No. ITQPL/BOM/022-613 dated 01.04.2010;
then again on 01.03.2012 and 01.08.2013.
7. Learned counsel for petitioner has submitted that in terms of
addendum Agreements, the respondent was under the obligation to generate
minimum 24,000 segments per quarter which was brought to 15,000 by
virtue of last addendum dated 01.08.2013 and clause Clause 3(f) thereof,
provides the consequences in the event of failure of respondent to do the
needful. Also submitted that in terms of the said addendum agreement,
petitioner paid an aggregate and total amount of Rs.3,49,25,086.00 as
upfront advance, which was required to be set off against the Productivity
Incentive payment that was to be paid by the petitioner to the respondent for
generating segments using the said system and that the respondent was very
well aware about the categorical and unambiguous contractual obligation to
achieve minimum number of segments.
8. Petitioner claims that respondent has been able to achieve only
1,84,041 segments against the target of 5,27,500 segments for the period of
May, 2012 December, 2020 and thereby, segments were short by 3,43,459.
Further, respondent continuously in successive quarters failed to generate
60% of the Target Segments and so, petitioner sent a legal notice dated
10.02.2021 demanding total amount of Rs.9,18,41,777.00, which was not
responded to. Thereafter, petitioner sent a legal notice dated 27.03.2021
invoking arbitration in terms of Clause 8 (i) of the Principal Agreement and
proposed name of Hon'ble Mr. Justice (Retired) Servesh Kumar Gupta to act
as the sole arbitrator for adjudicating the disputes between the parties.
However, the said notice was also not replied to and thus, this petition.
9. Upon hearing and perusal of record of this case, this Court finds that
Clause-8(i) of the Subscriber Agreement dated 01.04.2010, contains the
dispute resolution clause, which notes that the disputes between the parties
shall be resolved through arbitration and the venue shall be New Delhi.
Further, petitioner by virtue of notice of demand dated 27.03.2021 has
invoked arbitration and also proposed the name of Arbitrator, however the
said notice was not replied by the respondent.
10. Pertinently, by virtue of Hon'ble Supreme Court's decision in Perkins
Eastman Architects DPC & Anr. Vs. HSCC (India) Ltd. 2019 SCC Online
SC 1517 the proposal of petitioner to appoint Arbitrator of its choice has
become null and void, as in the said decision it has been categorically stated
that "no single party can be permitted to unilaterally appoint the Arbitrator,
as it would defeat the purpose of unbiased adjudication of dispute between
the parties".
11. Accordingly, this Court appoints Ms. Justice (Retd.) Pratibha Rani
(Mobile No. 9910384626) the sole Arbitrator to adjudicate the dispute
between the parties.
12. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
13. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
14. The present petition and pending application, if any, are accordingly
disposed of.
(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 04, 2022
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