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Swiss Singapore India Private Limited vs R.S. Fuel Private Limited on 15 September, 2021

Author: Vibhu Bakhru

Bench: Vibhu Bakhru

                         $~4
                         *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                         +     ARB.P. 767/2021
                               SWISS SINGAPORE INDIA PRIVATE LIMITED ..... Petitioner
                                            Through   Mr. Abhisaar Bairagi, Adv.

                                                   versus

                               R.S. FUEL PRIVATE LIMITED                 ..... Respondent
                                              Through  Mr. Shubail Farook, Adv.

                               CORAM:
                               HON'BLE MR. JUSTICE VIBHU BAKHRU

                                            ORDER

% 15.09.2021 [Hearing held through videoconferencing] I.A. No.10149/2021

1. Allowed, subject to all just exceptions.

2. The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter the 'A&C Act') praying that a Sole Arbitrator be appointed to adjudicate the disputes that have arisen between the parties in terms of Clause 20 of the Sales Contract dated 25.02.2020 (hereafter the 'Sales Contract').

3. The parties had entered into the Sales Contract, whereby the petitioner had agreed to procure and deliver 5,000 metric tonnes of Steam Coal at Tuna Port, Gujarat for a total consideration of ₹3,96,42,500/-. The dispute Signature Not Verified Digitally Signed By:DUSHYANT RAWAL has arisen in connection with the said Sales Contract.

4. On 21.04.2020, the respondent terminated the Sales Contract. On 03.06.2020, the petitioner sent a notice calling upon the respondent to make certain payments, which according to the petitioner were due and payable by the respondent.

5. The petitioner followed up the said letter with a communication dated 05.08.2020 inviting the respondent to settle the dispute amicably through mediation. The petitioner states that it did not receive any response to the said communications.

6. On 18.09.2020, the petitioner issued a notice invoking the agreement to refer the dispute to arbitration in terms of Clause 20 of the Sales Contract. The petitioner also suggested the name of an arbitrator. On 14.10.2020, the respondent sent a letter responding to the aforesaid notice. The respondent did not dispute the existence of an agreement to refer the dispute to arbitration, however, it did not consent to the name of the arbitrator as suggested by the petitioner.

7. Mr. Farook, learned counsel appearing for the respondent fairly states that there is no dispute as to the existence of the Arbitration Agreement or that the petitioner has invoked the same. He, however, submits that in all probability, the parties would be able to resolve their disputes amicably and requests that prior to the appointment of an arbitrator, the parties be referred to mediation before the Delhi High Court Mediation and Conciliation Centre (DHCMCC).

8. Clause 20 of the Sales Contract is set out below:

"20. Commercial Law and Arbitration In case of any dispute arising out of this Agreement / contract, the dispute shall be referred to arbitration under the Arbitration & Conciliation Act, 1996 or any amendments thereof. The arbitration shall be conducted by a sole arbitrator who shall be appointed by an officer of Swiss Singapore India private Ltd. above the designation of Vice President and such an appointment shall be binding on the parties. The venue of arbitration shall be New Delhi and the language of arbitration shall be English. The arbitration shall be concluded as expeditiously as possible and preferably within six months from the commencement date."

9. Concededly, in view of the decision of the Supreme Court in Perkins Eastman Architects DPC and Anr. v. HSCC (India) Limited: Arbitration Application No 32 of 2019, decided on 26.11.2019 and, as followed by this Court in Proddatur Cable TV Digi Services v. Citi Cable Network Limited:

(2020) 267 DLT 51, a unilateral appointment of an arbitrator is not permissible.

10. Considering that there is no dispute as to the existence of the agreement to refer the dispute to arbitration in terms of Clause 20 of the Sales Contract, this Court considers it apposite to allow the present petition.

11. Accordingly, Justice (Retired) Ajit Bharihoke (Mobile No. 9650110057), a former Judge of this Court, is proposed to be appointed as the Sole Arbitrator to adjudicate the disputes between the parties. The parties are at liberty to approach the learned Sole Arbitrator for eliciting his consent and necessary disclosure as required under Section 12 (1) of the A&C Act. Let the same be furnished to this Court before the next date.

12. In the meanwhile, parties are also referred to the Delhi High Court Signature Not Verified Digitally Signed By:DUSHYANT RAWAL Mediation and Conciliation Centre (DHCMCC). They shall appear before DHCMCC on 24.09.2021 to explore the possibility of resolving their disputes amicably. The mediation shall be completed within a period of three weeks from that date. In the event, the parties are unable to resolve their dispute amicably, this Court shall consider the appointment of the Sole Arbitrator on the next date.

13. List on 28.10.2021.

VIBHU BAKHRU, J SEPTEMBER 15, 2021 dr Signature Not Verified Digitally Signed By:DUSHYANT RAWAL