Madras High Court
M/S.Kone Elevator India Pvt.Ltd vs M/S.Tirupati Construction Company on 21 December, 2023
Author: C.Saravanan
Bench: C.Saravanan
Arb.O.P(Com.Div)No.511 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2023
CORAM :
THE HONOURABLE MR.JUSTICE C.SARAVANAN
Arb.O.P.(Com.Div.)No.511 of 2023
M/s.Kone Elevator India Pvt.Ltd.,
Plot No.A-28, Sipcot Industrial Park,
Pillaipakkam, Sriperumpudur Taluk,
Kancheepuram District 602 105
Rep.through its Authorized Signatory
Bhupendra Chaturvedi ... Petitioner
Vs.
M/s.Tirupati Construction Company
C-29, Gulmohar Shopping Complex,
Sector-15, Noida,
Uttar Pradesh 201 301. ... Respondent
Prayer: Original Petition is filed under Section 11(6) of the Arbitration
and Conciliation Act, 1996 as amended Act, 2019, praying to appoint
petitioner's nominee Mr.Gaurav Chaterjee, Advocate as the sole arbitrator
under Contracts bearing Reference Nos.KEI/0050/0001007087 dated
20.04.2011 and KEI/0050/0001488082 dated 07.07.2011 in accordance
with Section 11(6)9a) of the Arbitration and Conciliation Act, 1996 and
directing the respondent to pay the petitioners cost of the instant
application.
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Arb.O.P(Com.Div)No.511 of 2023
For Petitioner : Mr.Krishna Sumanth
For Respondent : Mr.N.P.Vijayakumar
ORDER
The dispute between the parties is arbitrable in terms of clause a(5) of terms and conditions of the contract signed between the petitioner and the respondent on 20.04.2011. A similar clause exists under contract dated 07.07.2011 clause a(5) from the respective contract read identically. They are reproduced below:-
ClauseA(5) of the Terms and Conditions of Contract A(5) Arbitration : In the event of A(5) Arbitration : In the event of difference or dispute arising out of, under difference or dispute arising out of, under or in connection with this agreement, or in connection with this agreement, over the rights of obligation of parties over the rights of obligation of parties hereto, the dispute or difference shall be hereto, the dispute or difference shall be referred to the Arbitration of a Sole referred to the Arbitration of a Sole Arbitrator to be appointed by KONE Arbitrator to be appointed by KONE Elevator India Private Limited. The Elevator India Private Limited. The Venue of the Arbitrator shall be at Venue of the Arbitrator shall be at Chennai and the Courts in the City of Chennai and the Courts in the City of Chennai alone shall have the jurisdiction Chennai alone shall have the jurisdiction in relation to the Arbitration and the in relation to the Arbitration and the provisions of the Arbitration and provisions of the Arbitration and Conciliation Act, 1996 shall be applicable Conciliation Act, 1996 shall be applicable to such Arbitration. to such Arbitration.
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2. This petition is for appointment of Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. The respondents have entered appearance and also filed their counter today.
3. The learned counsel for the respondent submits that the dispute is time barred and therefore in terms of decision of the Hon'ble Supreme Court , the dispute need not be referred to the Arbitration.
4. The learned counsel for the petitioner on the other hand would submit that the respondent has been made payments even as belatedly as 2021. This issue can be agitated before the Arbitrator to decide the issue.
5. After hearing the counsels, this case was passed over to consent for appointment of an Arbitrator. After the case was passed over, the learned counsel for the respondent reported that no objection for all the issue including preliminary objection regarding arbitrability of dispute to be decided by an arbitrator to be appointed by this Court.
6. Recording the above submission, Court is inclined to appoint https://www.mhc.tn.gov.in/judis 3/9 Arb.O.P(Com.Div)No.511 of 2023 Mr.Justice N.Authinathan, (Retd.) Cell No.94455 08822) Former Judge of Madras High Court residing at Flat No.37, A-Block, Lakshmi Nivas, (Opp. To Rajarathinam Stadium) Rukmani Lakshmipathy Salai, Egmore, Chennai 600 008 , as a sole Arbitrator to enter appearance and decide the dispute between the parties. The petitioner will file all the documents to substantiate that the claim is not time barred. Learned Arbitrator shall endeavour to pass preliminary Award under Section 16 of the Arbitration and Conciliation Act, 1996 after hearing both the parties.
7. The learned Arbitrator appointed herein, shall after issuing notice to the parties and upon hearing them, endeavour to complete the arbitral proceedings and pass an award strictly in accordance with the provisions of the Arbitration and Conciliation Act, 1996, as expeditiously as possible, preferably within a period of twelve months after the date of completion of pleadings under Sub-Section 4 to Section 23 as is contemplated in Section 29-A of the Arbitration and Conciliation Act, 1996, without getting influenced by any of the observations made by this Court in this order.
8. The learned Arbitrator appointed herein shall be paid fees and https://www.mhc.tn.gov.in/judis 4/9 Arb.O.P(Com.Div)No.511 of 2023 other incidental charges as may be fixed with the consent of parties or in accordance with the provisions of the Arbitration and Conciliation Act, 1996, and the same shall be borne by the parties equally. In case, the respondent remain ex parte, the petitioner shall pay the entire fee and other incidental charges to the Arbitrator and later recover the same from the respondent.
9. This Original Petition is allowed accordingly, leaving the parties to bear their own costs.
10. Since this Court has appointed the Arbitrator, it is open to the petitioner as well as the respondent to seek other reliefs under Section 17 of the Arbitration and Conciliation Act, 1996, before the learned Arbitrator.
21.12.2023 Index : Yes/No Neutral Citation : Yes/No kkd https://www.mhc.tn.gov.in/judis 5/9 Arb.O.P(Com.Div)No.511 of 2023 C.SARAVANAN, J.
kkd Arb.O.P.(Com.Div.).No.511 of 2023 21.12.2023 Arb.O.P.(Com.Div.).No.511 of 2023 C.SARAVANAN, J.
https://www.mhc.tn.gov.in/judis 6/9 Arb.O.P(Com.Div)No.511 of 2023 This case is listed under the caption "for being mentioned" at the instance of the learned counsel for the respondent.
2. The learned counsel for the respondent submits that the rank of the counsel in the preamble to the order has been interchanged and therefore the same warrants correction. It is further mentioned that in Paragraph 8 also there is a mistake inasmuch as the petitioner had undertaken to bear all the expenses up to the stage of maintainability of arbitration proceedings.
3. The submission of the learned counsel for the respondent stands recorded. Accordingly Paragraph 8 shall reads as follows:-
“8. The learned Arbitrator appointed herein shall be paid fees and other incidental charges as may be fixed with the consent of parties or in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the same shall be borne by the petitioner until the determination of preliminary objections.
8(a). However, in case, the preliminary objection is answered against the respondent, the fees and incidental charges will have to be borne equally by the parties.
https://www.mhc.tn.gov.in/judis 7/9 Arb.O.P(Com.Div)No.511 of 2023 8(b). In case, the respondent remain ex parte, the petitioner shall pay the fee and other incidental charges payable to the Arbitrator and later recover the same from the respondent.
4. Registry is directed to carry out necessary corrections and issue fresh copy of the order to the parties.
5. All other observations in the earlier order dated 21.12.2023 remains unaltered.
20.02.2024 arb/rgm C.SARAVANAN, J.
arb/rgm https://www.mhc.tn.gov.in/judis 8/9 Arb.O.P(Com.Div)No.511 of 2023 Arb.O.P.(Com.Div.).No.511 of 2023 20.02.2024 https://www.mhc.tn.gov.in/judis 9/9