Bombay High Court
Chalo Mobility Private Limited vs Ebixcash Mobility Software India ... on 10 January, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
1/6 26 CARAP-173-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM. ARBITRATION APPLICATION NO.173 OF 2022
Chalo Mobility Private Ltd. .. Applicant
(Formerly Zophop Technologies
Pvt.Ltd.)
Versus
Ebixcash Mobility Software India .. Respondent
Ltd. (Formerly Trimax IT
Infrastructure and IT Services Ltd.)
WITH
COMM. ARBITRATION APPLICATION (L) NO.23338 OF 2022
Chalo Mobility Private Ltd. .. Applicant
Versus
Ebixcash Mobility Software India .. Respondent
Ltd.
...
Ms.Kshama Loya with Mr.Adimesh Lochan i/b Nishith Desai
Associates for the Applicant.
...
CORAM: BHARATI DANGRE, J.
DATED : 10th JANUARY, 2023
P.C:-
1. The two applications fled under Section 11(6) of the
Arbitration and Conciliation Act, 1996, seek appointment of a
sole arbitrator to adjudicate the disputes that have arisen
between the applicant and the respondent and the request is
made by the learned counsel Ms.Kshama Loya that in both the
M.M.Salgaonkar
::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 :::
2/6 26 CARAP-173-22.odt
applications, a common arbitrator shall be appointed to
adjudicate the dispute.
2. In both the applications i.e. CARAP/173/22 and
CARAPL/23338/22, the applicant is one 'Chalo Mobility
Private Limited' (formerly known as 'Zophop Technologies
Private Limited'). The respondent in both the applications is
'Ebixcash Mobility Software India Ltd.', formerly known as,
'Trimax IT Infrastructure and IT Services Ltd.'.
The respondent was served with the applications as it
could be refected from the affdavit of service, but I deem it
appropriate to issue a court notice on 29/11/2022. In
furtherance thereof, Master (Adm.), Suit Board Department,
High Court, O.S. Bombay has placed his service report on
record which is dated 17/12/2022. The said report clearly
indicate that the respondent was served by hand delivery on
15/12/2022 and an acknowledgment on copy of offce letter is
exhibited alongwith the said service report.
The above fact indicate that the notice was served upon
the respondent, but it has chosen not to be represented, which
has constrained me to proceed ex-parte against the
respondent.
3. Heard the learned counsel for the applicant and perused
the applications, which have highlighted the background in
which the relief is sought.
The applicant-Zophop is engaged in the business of
providing technology for public transportation through its
M.M.Salgaonkar
::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 :::
3/6 26 CARAP-173-22.odt
suite of mobile applications, including but not limited to
Zophop application. It also claimed to possess expertise in
offering solutions for multi-modal trip planning, real-time
tracking of different modes of public transportation and
ticketing, which allows the commuters to save time, money
and effort, making daily travel more convenient.
The respondent-Trimax is in the business of
undertaking and executing various turnkey projects of data
centre services, networking, FMS, RIM and BOOT Projects and
has also been undertaking the business of IT, BPO/call centre,
turnkey IT solutions. It thus offers wide range of IT services,
including system integration, infrastructure management
services and whole suite of data centre and cloud services. It
has also received a repute of leading intelligent transport
management system service provider, serving multiple public
transport operators across the country.
4. In the wake of this background, the respondent-Trimax
was awarded contract of providing certain services in the
nature of cashless ticketing solution (CTS)/automated fare
collection system (AFCS), vehicle tracking system (VTS), feet
management system (FMS) and operation and maintenance
for a period of 5 years by Calcutta State Transport Corporation
(CSTC). The said contract was awarded on build operate
transfer basis. The respondent thereafter awarded a sub-
contract to the present applicant and delegated it's obligations
in relation to the project under the CSTC agreement to Zophop
and Zophop, in turn agreed to accept such obligations and
perform the same on the terms and conditions set out therein.
M.M.Salgaonkar
::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 :::
4/6 26 CARAP-173-22.odt
In order to give shape to the aforesaid understanding
between the parties, an agreement was entered with CSTC on
12/01/2018. Similarly, an identical agreement was entered
with Bengaluru Metropolitan Transport Corporation (BMTC)
vide a distinct agreement, executed on 12/04/2018.
When both the agreements are perused, it is revealed
that they are identically worded and Clause No.12 in the
respective agreements provide mechanism for dispute
resolution and clause No.12.2 provides that the parties,
initially shall make an endeavour to settle the dispute of
difference amicably, but in absence of any settlement being
arrived at, it shall be referred to a sole arbitrator, to be
appointed by both the parties.
5. Since the dispute arose between the parties, the
applicant invoked arbitration in the wake of the aforesaid
clause by two distinct notices i.e. 03/06/2022 and
05/07/2022, where it was clearly set out that an attempt to
resolve the dispute amicably has failed and, therefore, the
applicant has chosen to invoke the arbitration by suggesting
the name of the sole arbitrator.
The notice issued in the agreement with CSTC was
responded to by the respondent on 02/07/2022 and on it's
perusal it is apparent that that the respondent is also
intending to pursue it's claim for damage suffered by it, as a
result of applicant's conduct and alleged consistent
repudiatory breach of the contract between the parties. The
name of the arbitrator, which was suggested, was rejected and
M.M.Salgaonkar
::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 :::
5/6 26 CARAP-173-22.odt
the name of the other arbitrator was suggested in the
response.
However, on a notice issued to BMTC, invoking
arbitration, there is no response by the respondent.
Since the parties could not mutually agree to the name of
the arbitrator, the applicant has approached this Court,
through distinct applications, seeking appointment of a
common arbitrator to adjudicate the dispute.
Hence, the following order.
: ORDER :
TERMS OF APPOINTMENT
(a) Appointment of Arbitrator :
Justice Smt.Sadhana Jadhav (Retd.) is hereby appointed as a Sole Arbitrator to decide the disputes and differences between the parties under the documents referred to above.
(b) Communication to Arbitrator of this order :-
(I) A copy of this order will be communicated to the learned Sole Arbitrator by the Advocates for the applicant/petitioner within one week from the date this order is uploaded.
(c) Disclosure : The learned Arbitrator, within a period of 15 days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application, with a copy to be forwarded to both the parties.
M.M.Salgaonkar ::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 ::: 6/6 26 CARAP-173-22.odt
(d) Appearance before the Arbitrator :The parties shall appear before the Sole Arbitrator within a period of two weeks from today and the learned Arbitrator shall fx up a frst date of hearing in the week commencing from 31/01/2023. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed.
(e) Contact and communication information of the parties : Contact and communication particulars are to be provided by both sides to the learned Sole Arbitrator. This information shall include a valid and functional E- mail address as well as mobile numbers of the parties, participating in the process as well as of the Advocates.
(f) Section 16 application : The Respondent is at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open.
(g) Fees : The Arbitrator is at liberty to fx the fees, in consultation with the parties, taking into consideration the fact that the two disputes have been made over to her for adjudication, which have arisen out of the two distinct agreements.
(h) Venue and seat of Arbitration : Parties agree that the venue and seat of the arbitration will be in Mumbai.
(i) Procedure : These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration.
6. All the rights and contentions of the parties are kept open.
7. Both the Applications stand disposed off in the aforesaid terms.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 16/01/2023 ::: Downloaded on - 28/05/2023 20:40:25 :::