Gujarat High Court
Ongc Petro Additions Limited (Opal) vs Napin Impex Limited on 11 February, 2022
Author: Aravind Kumar
Bench: Aravind Kumar
C/IAAP/71/2021 ORDER DATED: 11/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 71 of 2021
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ONGC PETRO ADDITIONS LIMITED (OPAL)
Versus
NAPIN IMPEX LIMITED
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Appearance:
MR. DHAVAL G BAROT(6546) for the Petitioner(s) No. 1
MR SANKET K PANDYA(9451) for the Petitioner(s) No. 1
MR VIKRAM J THAKOR(2221) for the Respondent(s) No. 1
MR ROBIN PRASAD(9344) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
Date : 11/02/2022
ORAL ORDER
1. The present petition is filed under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole Arbitrator contending inter alia that petitioner is engaged in the business of manufacturing and supplying petrochemicals and also involved in the sales and marketing of petrochemicals manufactured by it and for the purpose of selling its products, petitioner had appointed several Domestic Channel Partners as Del Cadre Agents (DCA) and/or Del Cadre Agents cum Consignment Stockist Agents (DCA cum CSA). It is stated that with a view to appoint CSA for different territories in India online applications were invited from prospective Domestic Channel Partners and respondent Page 1 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022 C/IAAP/71/2021 ORDER DATED: 11/02/2022 was selected as one of the DCA as well as CSA for marketing and distribution of petitioner company's product in Gurgaon region and agreements came to be entered into on 11.04.2017.
2. It is further stated that dispute had arisen in respect of said agreements between the parties and such disputes are required to be resolved through Arbitration as per Clause 31/21 of the Agreements namely Clause 31 of Domestic Channel Partner Agreement and Clause 21 of Domestic Channel Partner Agreement for Del Cadre Agent provides for resolution of disputes by arbitration. Respondents do not dispute the existence of such clause and parties having agreed upon for resolution of the said dispute through Arbitration.
3. Clause 31 and Clause 21 of these two agreements reads :
"Clause 31 - Alternate Dispute Resolution
(a) Except as otherwise provided elsewhere in this Agreement, if any dispute, difference, question or disagreement arises between the parties hereto or their respective representatives or assignees, in connection with construction, meaning, operation, effect, interpretation of this Page 2 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022 C/IAAP/71/2021 ORDER DATED: 11/02/2022 Agreement or breach thereof which parties are unable to settle mutually, the same shall be referred to Outside Expert Committee (OEC) and/or Arbitration policy of the Company (as applicable on the date of invocation).
(b) Arbitration can be invoked by giving invocation Notice only after expiry of the 60 days' period as per Dispute Notice. Parties wishing to refer a Dispute to Arbitration shall give notice to the other party specifying all the points of disputes with details of the amount or claim in Indian Rupees to be referred to the Arbitration ("Invocation Notice").
(c) The seat of Arbitration shall be Vadodara, Gujarat. For the sake convenience.
Parties may agree to hold the proceedings at any other venue. The Arbitration shall be conducted in English language. Insofar as practicable, the parties shall continue to implement the terms of the Agreement notwithstanding initiation of Arbitration proceedings.
(d) The Arbitrator(s) shall give reasoned and speaking award and it shall be final and binding on the parties.
Subject to the above, the provisions of the Arbitration and Conciliation Act, 1996, as amended and applicable from time to time shall apply to the arbitration proceedings under this Agreement.
Clause 21 - Alternate Dispute Resolution
(a) Except as otherwise provided elsewhere in this Agreement, if any dispute, difference, question or disagreement arises between the parties hereto or their respective representatives or assignees, in connection with construction, meaning, operation, effect, interpretation of this Agreement or breach thereof which parties are Page 3 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022 C/IAAP/71/2021 ORDER DATED: 11/02/2022 unable to settle mutually, the same shall be referred to Outside Expert Committee (OEC) and/or Arbitration policy of the Company (as applicable on the date of invocation).
(b) Arbitration can be invoked by giving invocation Notice only after expiry of the 60 days' period as per Dispute Notice. Parties wishing to refer a Dispute to Arbitration shall give notice to the other party specifying all the points of disputes with details of the amount or claim in Indian Rupees to be referred to the Arbitration ("Invocation Notice").
(c) The seat of Arbitration shall be Vadodara, Gujarat. For the sake of convenience, Parties may agree to hold the proceedings at any other venue. The Arbitration shall be conducted in English language. Insofar as practicable, the parties shall continue to implement the terms of the Agreement notwithstanding initiation of Arbitration proceedings.
(d) The Arbitrator(s) shall give reasoned and speaking award and it shall be final and binding on the parties.
Subject to the above, the provisions of the Arbitration and Conciliation Act, 1996, as amended and applicable from time to time shall apply to the arbitration proceedings under this Agreement."
4. In view of the fact that the respondent having not disputed about the existence of arbitration agreement entered into between parties and respondent in its reply affidavit filed having clearly stated if this Court is inclined to appoint Page 4 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022 C/IAAP/71/2021 ORDER DATED: 11/02/2022 an Arbitrator, it may appoint any of the arbitrators specified in the petition, this Court is of the view that a sole Arbitrator requires to be appointed since both parties are ad-idem on the issue of appointment of arbitrator. Respondent in its reply affidavit has admitted to the following effect :
"6. Without prejudice to the contentions raised hereinabove that petitioner is not entitled to file petition under Section 11 of the Arbitration Act, 1996 invoking arbitration clauses of DCA and CSA it is alternatively submitted that if the Hon'ble Court is inclined to appoint the sole arbitrator from the three distinguished names referred to in paragraph 7(P) of the petition, the answering respondent has no objection if anyone from the said three Hon'ble Retired High Court Judges, is appointed as sole arbitrator. Further, as per the agreement the seat of arbitration is to be at Vadodara Gujarat but the answering respondent has no objection if arbitration proceeding may be conducted in New Delhi for sake of convenience of both the parties as the answering respondent is also from New Delhi."
5. In view of the above statement made by the respondent, this Court is of the considered view that the prayer sought for in the petition deserves to be granted.
6. Hence, the following :
ORDER
(i) Petition is allowed.Page 5 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022
C/IAAP/71/2021 ORDER DATED: 11/02/2022
(ii) Hon'ble Justice Jagdish Singh Khehar (Retired), former Chief Justice of India is hereby nominated as the sole Arbitrator to adjudicate the dispute that has arisen between the parties pursuant to agreement dated 11.02.2017.
(iii) Registry to communicate this order to the Hon'ble Learned Arbitrator forthwith by Speed Post.
(ARAVIND KUMAR, CJ) GAURAV J THAKER Page 6 of 6 Downloaded on : Sun Apr 24 12:41:30 IST 2022