Delhi High Court - Orders
Rms Power Solution Pvt. Ltd vs Union Of India & Anr on 27 September, 2022
Author: Prateek Jalan
Bench: Prateek Jalan
$~32 to 34, 40 to 42
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 1109/2022
RMS POWER SOLUTION PVT. LTD ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
33
+ ARB.P. 1110/2022
RMS POWER SOLUTIONS PRIVATE LIMITED ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
34
+ ARB.P. 1111/2022
RMS POWER SOLUTION PVT. LTD ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
40
+ O.M.P.(I) (COMM.) 276/2022
RMS POWER SOLUTIONS PRIVATE LIMITED ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Signature Not Verified
Digitally signed ARB.P. 1109/2022 & Connected Matters Page 1 of 5
By:SHITU NAGPAL
Signing Date:28.09.2022
14:23:38
41
+ O.M.P.(I) (COMM.) 277/2022
RMS POWER SOLUTIONS PRIVATE LIMITED ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
42
+ O.M.P.(I) (COMM.) 278/2022
RMS POWER SOLUTIONS PRIVATE LIMITED ..... Petitioner
versus
UNION OF INDIA & ANR. ..... Respondents
Present:- Mr. Kamlesh Ojha & Mr. Yudhvir Singh Chauhan,
Advocates for RMS Power Solution Private Limited.
Ms. Aakanksha Kaul, Senior Panel Counsel for Union of
India with Mr. Jitendra Kumar Tripathi, Mr. Manek Singh &
Mr. Aman Sahani, Advocates for UOI. [M:-9990952670].
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 27.09.2022
1. These six petitions arise out of three contracts and purchase orders dated 06.03.2019, for supply of Signalling Cables, which were placed by the Union of India ["UoI"] upon the petitioner. Each of the tenders were subjected to Indian Railways Standard Conditions of Contract, which contains an arbitration clause in Clause 2900. The arbitration clause contemplates adjudication of the disputes by a sole arbitrator, to be appointed by the designated authority of the respondent.
Signature Not Verified Digitally signed ARB.P. 1109/2022 & Connected Matters Page 2 of 5 By:SHITU NAGPAL Signing Date:28.09.2022 14:23:382. Three petitions [ARB.P. Nos. 1109-1111/2022] have been filed under Section 11 of the Arbitration and Conciliation Act, 1996 ["the Act"] for appointment of arbitrators. The other three petitions [O.M.P.(I) (COMM.) Nos. 276-278/2022] have been filed under Section 9 of the Act for interim measures of protection in anticipation of arbitral proceedings. Since the petitions are materially similar, they are being taken up for hearing together and disposed of by this common order.
3. Disputes arose on account of the UoI issuing recovery notices to the petitioner in the three purchase orders, pursuant to cancellation of the contracts. The petitioner, disputing the validity of the recovery notices, invoked the arbitration clauses by communications dated 03.08.2022 [in ARB.P. 1109/2022 and ARB.P. 1110/2022] and 20.08.2022 [in ARB.P. 1111/2022]. As the said notices failed to elicit a response, the petitioner has approached this Court under Section 11 of the Act.
4. Notice was issued in these petitions on 23.09.2022, when Ms. Aakanksha Kaul, learned counsel for the UoI, sought time to take instructions.
5. Ms. Kaul states upon instructions that, the arbitrator may be appointed in all the three arbitration petitions. As the disputes are substantially similar, Ms. Kaul suggests that a common arbitrator may be appointed in all the three cases, although the arbitrations arise under separate contracts and will be conducted as three independent arbitrations. Ms. Kaul further submits that the proceedings may be referred to the Delhi International Arbitration Centre, Delhi High Court, Shershah Road, New Delhi-110503 ["DIAC"].
6. Mr. Kamlesh Ojha, learned counsel for the petitioner, concurs with Signature Not Verified Digitally signed ARB.P. 1109/2022 & Connected Matters Page 3 of 5 By:SHITU NAGPAL Signing Date:28.09.2022 14:23:38 the above submissions of Ms. Kaul.
7. In view of the fact that the parties are being referred to arbitration by this order, I do not consider it necessary to adjudicate the petitions under Section 9 of the Act at this stage. Mr. Ojha submits that the Section 9 petitions may be referred to the arbitrator for consideration as applications under Section 17 of the Act.
8. In view of the above submissions, all the six petitions are disposed of with the consent of the learned counsel for the parties, with the following directions:-
a. The disputes between the parties under the contracts and the purchase orders in question are referred to arbitration of Mr. Ayush Agarwala, Advocate [Tel:- 9999105064]. The arbitration will be held under the aegis of the DIAC.
b. The Rules of the DIAC will govern the arbitrations, including as to the renumeration of the learned arbitrator.
c. It is made clear that, although a common arbitrator is to be appointed in all the three cases, they will be treated as independent arbitrations and the parties will be entitled to raise independent claims and defences in each case.
d. The petitions filed before this Court under Section 9 of the Act will be placed before the learned arbitrator as applications under Section 17 of the Act. The respondent may also place its reply before the learned arbitrator, upon the arbitrator entering reference, so that an expeditious adjudication of the applications under Section 17 of the Act is possible.
e. The learned arbitrator is requested to furnish a declaration in terms Signature Not Verified Digitally signed ARB.P. 1109/2022 & Connected Matters Page 4 of 5 By:SHITU NAGPAL Signing Date:28.09.2022 14:23:38 of Section 12 of the Act, prior to entering upon the references.
9. It is made clear that all the rights and contentions of the parties, including as to the maintainability of any of the claims and on merits, are left open.
PRATEEK JALAN, J SEPTEMBER 27, 2022 'pv'/ Click here to check corrigendum, if any Signature Not Verified Digitally signed ARB.P. 1109/2022 & Connected Matters Page 5 of 5 By:SHITU NAGPAL Signing Date:28.09.2022 14:23:38