Madras High Court
M/S.Western India Erectors Llp vs M/S.Flsmidth Private Limited on 3 April, 2024
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
Arb.O.P (Com.Div.) No.98 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.04.2024
CORAM
THE HON'BLE Mr. JUSTICE KRISHNAN RAMASAMY
Arb.O.P (Com.Div.) No.98 of 2024
M/s.Western India Erectors LLP,
Rep by its Authorized Signatory,
Mr.Vinay J.Shah,
3/20, Kilachand Building,
298, Princess Street, Marine Lines,
Mumbai 400 002.
... Petitioner
Vs.
M/s.FLSMIDTH Private Limited,
Having its Registered Office at,
“FLSmidth House”, 34, Egatoor,
Rajiv Gandhi Salai,
Kelambakkam, Tamil Nadu 603 103.
... Respondent
Arbitration Original Petition filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 to
a) appoint an Arbitrator(s) to decide the dispute and differences
between the petitioner and the respondent in terms of the Purchase Order
dated 21.01.2019;
b) direct the appointed Arbitrator to complete the arbitration
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Arb.O.P (Com.Div.) No.98 of 2024
proceedings within a period of 12 months;
For Petitioner : Ms.S.Muthu Praba
for Mr.K.S.Shankar Chakrapani
For Respondent : Mr.T.Ravichandran,
for M/s.Shree Law Services
ORDER
This petition has been filed to appoint an Arbitrator to adjudicate the dispute between the petitioner and the respondent.
2. The learned counsel for the petitioner would submit that as per the Purchase Order dated 21.01.2019 issued by the respondents, the petitioner has to provide services of dismantling, fabrication and erection for the structures and equipment at SICAL. The total value of the said contract was a sum of Rs.1,19,88,950/-. While executing the work, the said contract was terminated by the respondent. Hence, for the work completed by the petitioner till the date of termination, the respondent is liable to pay a sum of Rs.60,57,626/-. Since the said amount was not paid by the respondent, the petitioner had invoked the Arbitration Clause and sent a notice dated 31.12.2022, for which, the respondent replied on 06.02.2023 denying the 2/7 https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No.98 of 2024 allegations raised by the petitioner. Thereafter, on 06.04.2023, the petitioner sent a notice to the respondent suggesting a panel of three Arbitrators. However, the respondent had not agreed with the same and sent a reply notice dated 17.04.2023, whereby they had nominated three Arbitrators, but the same was not accepted by the petitioner. Hence, this petition has been filed.
4. In reply, the learned counsel appearing for the respondent would submit that would he has no objection for appointment of Arbitrator.
5. Heard the learned counsel for the petitioner and perused the materials available on record.
6. In the present case, it appears that the respondent had failed to make payment for the work done by the petitioner. Upon perusal of the Purchase Order dated 21.01.2019, it is clear that the dispute among the parties shall be resolved by virtue of Arbitration as per the Clause 28 of the said Purchase Order, which reads as follows: 3/7
https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No.98 of 2024 “All disputes and claims between the parties concerning, arising from or relating in any way to the Contract (collectively, "Disputes") that cannot be settled by good faith discussion, shall be resolved exclusively through binding arbitration as per Arbitration and Conciliation Act, 1996 of India and rules thereunder in effect at the time. The arbitral panel shall consist of a sole arbitrator appointed by both parties in accordance with the Arbitration and Conciliation Act, 1966 of India. The arbitration shall be held in Chennai, India and the arbitration proceedings shall be in English."
7. Considering the submissions made by the learned counsel for the petitioner and in view of the fact that the dispute between the petitioner and the respondent squarely falls within the purview of the Clause 28 of the Purchase Order dated 21.01.2019, this Court is inclined to appoint an Arbitrator.
8. Accordingly, this Court feels it appropriate to pass the following order:
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i) The Hon'ble Mr.Justice R.Pongiappan, Former Judge, Madras High Court, F-1, DOTE Staff Quarters, Gandhi Mandapam Road, Near Birla Planetorium, Guindy, Chennai 600 025, Mobile No.94436 43366, is appointed as sole arbitrator to enter upon reference and adjudicate the disputes inter se the parties
ii) The learned Arbitrator appointed herein, shall after issuing notice to the parties and upon hearing them, pass an award as expeditiously as possible, preferably within a period of six months from the date of receipt of the Order. The learned Arbitrator is also directed to decide the matter without influenced by the observations made by this Court in the present order.
iii) The learned Sole Arbitrator appointed herein shall be paid fees and other incidental charges, as per Schedule IV of the Act and the same shall be borne by the parties equally. In the event of non-appearance of the respondent, the petitioner shall bear the entire remuneration and other expenses and thereafter, the petitioner can recover the same directly from the respondent and vice versa.
9. This Arbitration Original Petition is ordered accordingly, leaving the parties to bear their own costs. Since this Court has appointed an 5/7 https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No.98 of 2024 Arbitrator, it is open to the petitioner as well as the respondent to seek other reliefs under the provisions of Arbitration and Conciliation Act 1996 before the Arbitrator.
03.04.2024 Speaking/Non-speaking order Index : Yes / No Neutral Citation: Yes / No nsa 6/7 https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No.98 of 2024 KRISHNAN RAMASAMY.J., nsa Arb.O.P (Com.Div.)No.98 of 2024 03.04.2024 7/7 https://www.mhc.tn.gov.in/judis