Calcutta High Court
M/S. Eastern Metec Pvt. Ltd vs Wb. Precision Engineering Solution Ltd on 13 September, 2018
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
ORDER SHEET
AP 247 OF 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
M/S. EASTERN METEC PVT. LTD.
Versus
WB. PRECISION ENGINEERING SOLUTION LTD.
............
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY Date : 13th September, 2018.
Mr. Anindya Basu, Mr. S.R. Saha, Mr. S. Maity, advs...for petitioner.
Mr. M. R. Sarbadhikary, adv...for respondent.
The Court : By this application under section 11(b) of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2016 (in short "the Act of 1996") the petitioner has approached this Court for appointment of an arbitrator to adjudicate upon the disputes between the parties relating to the purchase order dated February 22, 2016.
In the supplementary affidavit affirmed on August 24, 2018, the petitioner has disclosed a certified copy of the said agreement dated February 22, 2016. As per clause 16 of the said purchase order any dispute or differences arising out of or in connection with or in relation to the said purchase order, shall in the first instance be attempted to be resolved 2 amicably by negotiation in good faith between the parties. Clause 17 of the said purchase order provides that in case any dispute or difference cannot be amicably resolved/settled within 30 days, the same shall be referred to arbitration, which shall be in accordance with the provisions of the Act of 1996, as amended from time to time.
It is the case of the petitioner that after issuance of the said purchase order the respondent signed and returned a copy thereof to the petitioner, as confirmation of its acceptance of the terms and conditions mentioned in the purchase order, including the arbitration agreement between the parties. In the notice dated September 4, 2017 issued to the respondent under section 21 of the Act of 1996 the petitioner asserted that disputes have arisen between the parties relating to the said purchase order and several meetings were held between the parties but the disputes could not be amicably resolved. Thus, by the said notice dated September 4, 2017 the petitioner invoked clause 17 of the said purchase order and named an arbitrator to adjudicate the disputes between the parties. The respondent by its letter dated September 22, 2017 did not dispute the fact asserted by the petitioner about holding of several sittings for amicable settlement of the disputes between the parties without any result, but refused to agree to the appointment of the arbitrator by the petitioner. Thus, the petitioner has filed this application seeking for the relief already mentioned hereinabove.
Mr. Anindya Basu, learned advocate appearing for the petitioner submitted that in the present case, there is no dispute between the parties with regard to the existence of the arbitration agreement contained in clause 17 of the said purchase order and that the petitioner has filed this application after issuing notice under section 21 of the Act of 1996 to the respondent. He, therefore, prayed for appointment of an arbitrator to adjudicate the 3 disputes between the parties but the respondent has not agreed to the appointment of the arbitrator named by the petitioner.
However, Mr. Sarbadhikary, learned advocate appearing for the respondent submitted that the copy of the said purchase order as has been disclosed by the petitioner in its supplementary affidavit affirmed on August 24, 2018 may not be a copy of the original purchase order. He further submitted that the petitioner has not substantiated that any effective step was taken for amicable settlement of the disputes between the parties. He further submitted that by a letter dated August 3, 2017 the petitioner threatened the respondent with filing of a suit. Urging all these grounds Mr. Sarbadhikary pressed for dismissal of the application.
I have considered the facts of the case and the arguments advanced by the learned counsel appearing for the parties. The petitioner has already disclosed the certified copy of the said purchase order containing the arbitration agreement between the parties and nothing could be pointed out by the respondent to suggest that the copy of the purchase order is different from the original purchase order. It is a fact that by a letter dated August 3, 2017 the petitioner called upon the respondent to pay its outstanding dues within a month failing which, it would have filed a suit against the respondent for recovery of its money. However, subsequently, the petitioner issued the notice dated September 4, 2017 under section 21 of the Act of 1996 and invoked the arbitration agreement between the parties. By the said notice the petitioner also named an arbitrator, but by its letter dated September 22, 2017 the respondent did not agree to the arbitrator named by the petitioner. In the said notice dated September 4, 2017 the petitioner has also asserted that the meetings held between the parties for amicable settlement of their disputes did not yield any result and the same was 4 not disputed by the respondent in its letter dated September 22, 2017. Considering all these facts, I find that the petitioner has fulfilled all the conditions for maintaining this application under section 11(6) of the Act of 1996 for appointment of an arbitrator. Accordingly, Mr. Amitabha Ghosh, Advocate of Bar Library Club (1st Floor) is appointed as the Arbitrator to adjudicate upon the disputes between the parties.
The learned Arbitrator shall be free to fix his remuneration and to engage the secretarial staff. The fees of the learned Arbitrator and the remuneration of the secretarial staff shall be borne by the parties in equal share.
The learned Arbitrator is requested to make and publish his award within ten months from the submission of the statement of claim by the claimant.
With the above directions, AP No. 247 of 2018 is disposed of, without any order as to costs.
(ASHIS KUMAR CHAKRABORTY, J.) pkd.