Bombay High Court
Capalpha Trade Private Limited vs Dentsu Communications India Private ... on 4 April, 2022
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
Digitally
signed by
PRAJAKTA
PRAJAKTA SAGAR
SAGAR VARTAK
VARTAK Date:
2022.04.04
18:15:15
+0530
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Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (L.) NO. 2964 OF 2022
Capalpha Trade Private Limited ..Petitioner
Vs.
Dentsu Communications India Pvt. Ltd. ..Respondent
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Mr. Zal Andhyarujina, Senior Advocate with Mr. Chirag Kamdar, Mr. M.
A. Kamdar and Mr. Rashmin Jain i/b. Kanga & Company for Petitioner.
Mr. Sanjeev Puri, Senior Advocate with Mr. Priyank Ladoia and Mr.
Nitansh Shah i/b. AZB & Partners for Respondent.
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CORAM : G.S. KULKARNI, J.
DATE : APRIL 04, 2022.
P.C.:
1. This is a petition filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") whereby the petitioner has prayed for interim measures pending the arbitral proceedings. As contended in the petition, disputes and differences have arisen between the parties under fourteen purchase orders which are annexed at Exhibit H-1 to Exhibit H-14 to the petition which contain the following arbitration agreement:-
"15. DISPUTES & JURISDICTION: All disputes between the seller and the buyer arising under / pursuant to this order or relating to the price payable thereunder or any other matter relating to this order shall be settled by arbitration of a sole arbitrator appointed by the mutual consent of the seller and the buyer under and in accordance with the provisions of the Arbitration & Conciliation Act, 1996."
2 4-carbpl 2964-22 The arbitration agreement is similar in all the purchase orders.
2. On the earlier occasion as also today, the Court has heard the learned senior counsel for the parties for some time. After some discussion on the proceedings, the parties have agreed that the disputes and differences between the parties arising under the purchase orders in question can be referred to arbitration by appointing a sole arbitrator. The parties have agreed to appoint Mr. Justice S. J. Vazifdar, Former Chief Justice of Punjab and Haryana High Court, as the sole arbitrator. The parties also agree that the venue of the arbitral proceedings shall be at Mumbai. It is also agreed between the parties that the petitioner may file an appropriate interim application under Section 17 of the Act praying for interim measures.
3. There is a dispute between the parties in regard to the "seat" of the arbitration. As the parties have now agreed that the disputes be referred to arbitration, learned counsel for the petitioner would submit that the present petition can be disposed of, however, keeping open the contentions of the parties on the seat of arbitration and consequent to which the jurisdiction of the appropriate Court, to entertain proceedings under the Act, which the parties shall agitate at the appropriate time in appropriate proceedings.
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4. Thus, accepting such consensus between the parties, present petition would not warrant any further adjudication. It is accordingly disposed of however, keeping open contentions of the parties on jurisdiction and/or seat of arbitration, to be agitated in appropriate proceedings.
5. The learned prospective sole arbitrator, before entering the reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this petition with a copy to be forwarded to both the parties. At the first instance, the parties shall appear before the prospective arbitrator within 10 days from today on a date which may be mutually fixed by the prospective sole arbitrator. The fees payable to the arbitral tribunal to be decided by the arbitral tribunal in consultation with the parties.
6. It is clarified that the respondent agreeing to the venue of the arbitral proceedings to be at Mumbai, shall not amount as an acceptance on the part of the respondent of Mumbai being the seat of the arbitration.
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7. All contentions of the parties on merits of the disputes including arbitrability are expressly kept open.
8. Disposed of. No costs.
[G.S. KULKARNI, J.]