Karnataka High Court
M/S Asha Enterprises Pvt.Ltd vs Ongc Mangalore Petrochemicals on 30 November, 2020
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 30TH DAY OF NOVEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
CIVIL MISCELLANEOUS PETITION No. 101 OF 2020
BETWEEN:
M/S.ASHA ENTERPRISES PVT. LTD.,
HAVING OFFICE AT W-139,
GREATER KAILASH PART -I,
NEW DELHI - 110 048.
ALSO AT: M-49, 3RD FLOOR,
MAIN MARKET, GREATER KAILASH PART -I,
NEW DELHI - 110 048.
THROUGH SHRI.HARIKESH SHARMA DGM,
AUTHORIZED REPRESENTATIVE,
AGED ABOUT 41 YEARS,
S/O SHRI.KRISHNA SHARMA.
... PETITIONER
(BY SMT.SHWETHA ANAND, ADVOCATE)
AND:
ONGC MANGALORE PETROCHEMICALS
LIMITED (OMPL),
REGISTERED OFFICE:
MANGALORE SPECIAL ECONOMIC ZONE,
PERMUDA,
MANGALORE - 574 509.
ALSO AT:
ONGC MANGALORE PETROCHEMICALS LTD.,
2ND FLOOR, MUDA BUILDING,
2
URWA STORES,
MANGALORE - 575 006.
REPRESENTED BY GENERAL MANAGER,
COMMERCIAL AND PROJECTS.
... RESPONDENTS
(BY SRI. P.D.VISHWANATH, ADVOCATE)
THIS C.M.P. IS FILED UNDER SECTION 11(5, 6)
OF THE ARBITRATION AND CONCILIATION ACT 1996
PRAYING TO A) APPOINT AN ARBITRATOR IN
ACCORDANCE WITH CLAUSE 63 OF THE GENERAL
CONDITIONS OF CONTRACT FOR PURCHASE / WORK
ORDER IN WORK ORDER NO. 5010000124 DATED
29/06/2015 AND WORK ORDER NO. 5010000125
DATED 29/06/2015 ANNEXURE A AND B IN TERMS OF
SECTION 11(5,6) OF THE ARBITRATION AND
CONCILIATION ACT, 1996; B) GRANT COSTS;
C) SUCH OTHER RELIEF/S AS THIS HON'BLE COURT
DEEMS FIT TO GRANT IN THE CIRCUMSTANCES OF THE
CASE AND IN THE INTEREST OF JUSTICE AND EQUITY.
THIS C.M.P. COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner- M/s.Asha Enterprises Pvt. Ltd against the respondent - ONGC Mangalore Petrochemicals Limited (OMPL) seeking an appointment of an Arbitrator in pursuance of Clause-63 of the General Conditions of Contract 3 (GCC) for Purchase/Work Order vide Annexure-A dated 29.06.2015.
2. Clause-63 of the said GCC, which is an Arbitration clause reads as under:-
"63. ARBITRATION: Except as otherwise provided elsewhere in the contract, if any dispute, difference, question or disagreement arises between the parties to the contract or their respective representative or assignees, at any time in connection with contraction, meaning operation, effect interpretation of or put of the contract or breach thereof, the same shall be referred to Arbitration of a sole Arbitrator appointed by the Director -In-Charge of OMPL".
It is also agreed that there shall be no objection for appointment of an employee of OMPL as a Sole Arbitrator who also may or may not hold shares of OMPL a) Appointment of Arbitrator shall be made within 30 days of the receipt of the arbitration notice. b) If the Arbitrator so appointed dies, resigns, becomes incapacitated or withdraws for any reason from the proceedings, it shall be lawful for 4 the Managing Director of OMPL to appoint another person in his place in the same manner as aforesaid. Such person shall proceed with the reference from the stage where his predecessor had left if both parties consent for the same; otherwise, he shall precede de novo. c) It is a term of the contract that the party invoking arbitration shall specify all disputes to be referred to arbitration at the time of invocation of arbitration and not thereafter. d) it is also a term of the contract that neither party to the contract shall be entitled for any interest on the amount of the award e) The arbitrator shall give reasoned award and the same shall be final, conclusive and binding on he parties. f) The venue of the arbitration shall be Mangalore, Karnataka, India. g) The fees of the arbitrator, costs and other expenses incidental to the arbitration proceedings shall be borne equally by the parties h) Subject to as aforesaid, the provisions of the Arbitration and Conciliation Act, 1996 and any statutory modifications or re-enactment in lieu thereof shall apply to the arbitration proceedings under this clause.
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3. It is submitted that the requisite notice of request for reference to arbitration was given by the petitioner-company to the respondent-company vide Annexures-D and E dated 09.12.2019. No reply has been sent by the respondent to the said notice. Hence, the petitioner is before this Court by way of this petition to appoint the Sole Arbitrator to resolve their disputes
4. In view of the aforesaid facts and circumstances coupled with the submissions made by the learned counsel from both sides, since the Arbitration clause exists in the aforesaid GCC entered into between the parties and an arbitrable dispute also exists, this Court is of the opinion that the present petition deserves to be allowed under Section 11 of the Act and an independent Arbitrator deserves to be appointed.
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5. Accordingly, the petition is allowed. The matter is referred to arbitration to be conducted by the arbitral tribunal comprising of a sole arbitrator in terms of Section 63 of the General Conditions of Contract at Annexure-A. The respondent herein is directed to take necessary steps for appointment of the sole arbitrator by the Director in-charge of OMPL within a period of one month from the date of receipt of a copy of this order.
(i) All claims and contentions of any of the parties including jurisdiction, limitation, etc., are left/kept open to be decided by the Arbitral Tribunal.
(ii) Registry is directed to return all original documents, if any, produced by any of the parties after obtaining Photostat copies of the same.
Sd/-
JUDGE ag