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Itd Cementation India Limited (Jv) vs Pune Municipal Corporation Thr. Its ... on 28 July, 2021

Author: G. S. Patel

Bench: G.S. Patel

                                                                           11-ARP-13-2021.DOC




                      Shephali



                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                    ARBITRATION PETITION NO. 13 OF 2021


                      ITD Cementation India Limited ( JV)                      ...Petitioner
                           Versus
                      Pune Municipal Corporation through its Supply          ...Respondent

& Sewerae (Project) Department Mr Saurish Shetye, i/b Vishal S Shriyan, for the Petitioner. Mr Rajdeep Suresh Khadapkar, for Respondent No. 1.

CORAM: G.S. PATEL, J (Through Video Conferencing) DATED: 28th July 2021 PC:-

1. Between the parties there was a Work Order of 29th January 2020 issued by the 1st Respondent in favour of the Petitioner. The Petitioner and the 2nd Respondent had formed the 1st Petitioner's joint venture, ITD Cementation India Limited ( JV). The Contract SHEPHALI SANJAY and Work Order followed the usual form and had general terms and MORMARE Digitally signed by SHEPHALI conditions of contract. Clause 4.24 at page 120 sets out the dispute SANJAY resolution provision. This requires the reference of all disputes to a MORMARE Date: 2021.07.29 14:27:15 +0530 sole Arbitrator. However, the last sentence says that the sole Arbitrator is to be only the Municipal Commissioner of the 1st Respondent, the Pune Municipal Corporation. It is no longer contentious that such a clause is invalid and not in accordance with Page 1 of 3 28th July 2021 11-ARP-13-2021.DOC the law as laid down by the Hon'ble Supreme Court of India. See Lite Bite Foods Pvt Ltd v AAI,1 following the decisions in Perkins Eastman Architect DPC & Anr vs HSSC (India) Ltd;2 Voestalpine Schienen GmbH v Delhi Metro Rail Corporation Ltd;3 and TRF Limited v Energo Engineering Products Ltd.4. The submission is that because this provision for appointing a named Arbitrator is bad, therefore, there is no arbitration agreement at all. The statement needs only to be stated to be rejected.

2. It is then submitted that under one of the documents that is also part of the contract documents at Exhibit "1" at page 241, there is a clause 13 which says that all disputes in relation to the agreement are within the jurisdiction of the courts in Pune. This does not mean that the arbitration clause does not exist. At best, it only indicates that the venue or seat or both of the arbitration will be in Pune.

Importantly, clause 4.24 of the general conditions does not make any mention of the venue and place of the Arbitration.

3. At this stage, Mr Khadapkar for the Respondent seeks time to take instructions as to a name that can be suggested by the Pune Municipal Corporation. Knowing what the procedures of a Municipal Corporation are, I will grant that time.

4. List the matter on 4th August 2021.

1 2019 SCC OnLine Bom 5163.

2 2019 (9) SCC OnLine SC 1517.

3 (2019) 4 SCC 665.

4 (2017) 8 SCC 377.

28th July 2021 11-ARP-13-2021.DOC

5. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of an ordinary copy of this order.

(G. S. PATEL, J) Page 3 of 3 28th July 2021