Bombay High Court
Linde India Limited vs Sterlite Technologies Limited on 17 August, 2021
Author: B.P.Colabawalla
Bench: B.P.Colabawalla
18-CARAP-116-21.doc
GANESH
SUBHASH
LOKHANDE IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
ORDINARY ORIGINAL CIVIL JURISDICTION
GANESH SUBHASH
LOKHANDE IN ITS COMMERCIAL DIVISION
Date: 2021.08.23
17:11:29 +0530
COMMERCIAL ARBITRATION APPLICATION NO.116 OF 2021
Linde India Limited .. Applicant
Vs.
Sterlite Technologies Limited .. Respondent
------------
Mr.Vikas Talsania and Mr. Ashutosh Desai i/b. Desai Desai
Carrimjee and Mulla for the Applicant .
Mr.Madhur R. Baya a/w. T. Srivastava for the Respondent.
CORAM :- B.P.COLABAWALLA, J.
DATE :- 17th AUGUST, 2021.
P. C.:
1. This Application is filed under Section 11 of the Arbitration and Conciliation Act, 1996 seeking the appointment of the 2nd Arbitrator and subsequently a direction to the Arbitral Tribunal to adjudicate the disputes and differences between the parties have arisen under the Hydrogen Supply Agreement dated 1st March, 2011 read with the Operation and Maintenance Services Agreement dated 1st March, 2011.
2. The Arbitration Clause in Hydrogen Supply Agreement Ganesh Lokhande 1/5 18-CARAP-116-21.doc is reproduced herein under:
"In the event of any dispute or difference arising or occurring between the Parties in relation to anything or any matter arising out of or under this Agreement, the same shall be referred for arbitration to a sole arbitrator, if the Parties agree upon the same, failing which the dispute shall be referred to three arbitrators, each Party to appoint one arbitrator and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator. The decision of the sole arbitrator or in the event of arbitration by the three arbitrators, the decision of the majority of the arbitrators shall be final and binding upon the Parties. The arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 or any other statute governing the law of arbitration applicable at the relevant time. The arbitration shall be conducted at Mumbai."
3. As can be seen from the aforesaid Arbitration clause, the Arbitration was to be referred to sole Arbitrator, if the parties agreed upon the same and failing which, the dispute were to be referred to a three Member Tribunal.
4. Today when the matter is called out, the parties have agreed that without prejudice to their rights and contentions in the Arbitration, Mr.Justice S. C. Gupte, a Retired Judge of this Court, be appointed as a sole Arbitrator to decide the disputes and differences between the parties arising out of and/or in connection with and/or incidental to the Hydrogen Supply Agreement dated 1st March, 2011 read with the Operation and Maintenance Services Agreement dated 1st March, 2011. Ganesh Lokhande 2/5
18-CARAP-116-21.doc
5. In view of the aforesaid consensus, the following order is passed by consent of parties:
(a) Mr.S. C. Gupte, a Retired Judge of this Court, is hereby appointed to act as a Sole Arbitrator to decide the disputes and differences between the Applicant and the Respondent arising out of and/or incidental to and/or in connection with the Hydrogen Supply Agreement dated 1st March, 2011 read with the Operation and Maintainence Services Agreement dated 1st March, 2011.
(b) A copy of this order will be communicated to the learned Sole Arbitrator by the advocates for the Applicant within a period of one week from today.
(c) The learned Sole Arbitrator is requested to forward a statement of disclosure under Section 11(8) read with Section 12 (1) of the Arbitration Act to the advocates for the Applicant so as to enable the Applicant to file the same in the Registry of this Court. The Registry of this Court shall retain the said statement on the file of this Application and the copy of the same shall be furnished by the advocates for the Applicant to the Ganesh Lokhande 3/5 18-CARAP-116-21.doc advocates for the Respondent.
(d) The parties shall appear before the Sole Arbitrator on such date and such place as he nominates and obtain appropriate directions with regard to fixing a schedule for completing pleadings etc. The Arbitral Tribunal shall give all further directions with reference to the Arbitration and also as to how it is to proceed.
(e) The contact and communication particulars are to be provided by both sides to the Sole Arbitrator and this information shall also include a valid and functional email address and mobile numbers of the respective advocates.
(f) Both parties have agreed that all the Arbitral costs and fees of the Arbitrator will be borne equally by the Applicant and the Respondent subject to any further orders being passed by the Arbitral Tribunal in that regard.
(g) The parties immediately consent to a further extension of up to six months to complete the Arbitration should the learned Sole Arbitrator find it necessary.
(h) The parties have also agreed that the venue and the Ganesh Lokhande 4/5 18-CARAP-116-21.doc seat of Arbitration will be in Mumbai.
6. The above Arbitration Application is disposed of in the aforesaid terms. However, there shall be no order as to costs.
7. All parties to act on an authenticated copy of this order digitally signed by the Personal Assistant /Private Secretary/Associate of this Court.
(B. P. COLABAWALLA, J.) Ganesh Lokhande 5/5