Bombay High Court
Comsense Technologies Private Ltd vs Thyrocare Technologies Limited on 12 December, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
(23)CARAPL-30963-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION APPLICATION (L) NO.30963 OF 2022
Comsense Technologies Private Ltd. ] .. Applicant
vs.
Thyrocare Technologies Limited ] .. Respondent
Mr.Shyam Dewani a/w Chirag Chanani, Sumit Khanna, Gopal Tripathi,
Dakshata Sawant i/b Dewani Associates for the Applicant.
Mr.T.J. Pandian, for the Respondent.
CORAM : BHARATI DANGRE, J
DATE : 12th DECEMBER, 2022.
P.C.
1] An Agreement entered between the Applicant and Respondent
on 14.10.2017 for providing certain services, comprise of an arbitration
clause in the form of Clause No.11. It contemplates that any dispute,
controversy or claim arising out of or relating to or in connection with
the Agreement, or the breach, termination or validity thereof shall be
finally settled by an arbitral tribunal in accordance with the Arbitration
and Conciliation Act, 1996. It contemplates appointment of two
Arbitrators by each of the side and then appointment of third Arbitrator
to act as Chairman of the Tribunal.
2] There is no dispute about the existence of the arbitration clause
which can be construed as arbitration agreement and the respective
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counsels are at consensus that instead of appointing tribunal they
would have their dispute resolved through the Sole Arbitrator to be
appointed by this Court.
3] The learned counsel for the Respondent raised a preliminary
objection about maintainability of the Application at the instance of
Comsense Technologies Pvt. Ltd., a Company incorporated under the
provisions of Companies Act, by submitting that the Agreement in
question was entered with Comsense Marketing LLP.
The said objection is responded to by the learned counsel for the
Applicant by inviting my attention to Para 1 of the Application itself,
where a clarification is offered.
When the Application is perused aloangwith annexures, it can be
seen that invocation of the arbitration is by Comsense Technologies
Pvt. Ltd. itself and the response of the Applicant is also to the
Company.
In any case, it is open for the Respondents to raise this objection
before the Sole Arbitrator, who is competent to deal with the same by
virtue of Section 16 of the Arbitration and Conciliation Act, 1996.
4] The Arbitration Agreement is not in dispute and since it has
already been invoked, I deem it appropriate to appoint the Sole
Arbitrator to arbitrate between the Applicant and Respondent. Hence, I
pass the following order :
ORDER
TERMS OF APPOINTMENT
(a) Appointment of Arbitrator :
Advocate Ms.Kainaz Irani is hereby appointed as a Sole Arbitrator to decide the disputes and differences between the 2/4 ::: Uploaded on - 15/12/2022 ::: Downloaded on - 16/12/2022 03:43:27 ::: (23)CARAPL-30963-2022.doc 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.
(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 fix up a first date of hearing in the week commencing from 26/12/2022. 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 Sole Arbitrator shall be entitled for the fees as per the 4th Schedule of the Arbitration and Conciliation Act, 3/4 ::: Uploaded on - 15/12/2022 ::: Downloaded on - 16/12/2022 03:43:27 ::: (23)CARAPL-30963-2022.doc 1996 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the final Award that may be passed by the Tribunal.
(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.
Arbitration Application is disposed off.
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