Calcutta High Court
Bhagawati Oxygen Limited vs Hindustan Copper Limited on 28 January, 2020
Equivalent citations: AIRONLINE 2020 CAL 58
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD-C4 ORDER SHEET
A.P. No. 26 OF 2020
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BHAGAWATI OXYGEN LIMITED
Versus
HINDUSTAN COPPER LIMITED
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 28th January, 2020.
Appearance:
Mr. Pradip Kr. Ghosh, Sr. Adv.
Mr. Aryak Dutt, Adv.
Mr. R. K. Basu, Adv.
... for petitioner.
Mr. Joydeep Sen, Adv.
Mr. Guddu Singh, Adv.
... for respondent.
The Court : In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner has prayed for, appointment of a sole Arbitrator to adjudicate the disputes between the parties herein relating to the agreement dated August 01, 2007(hereinafter referred to as "the said agreement dated August 01, 2007").
By the said agreement dated August 01, 2007 the petitioner agreed to supply and the respondent agreed to obtain supply of gaseous oxygen on continuous basis inter alia on the terms and conditions specified therein. Clause 8.0 of the said agreement dated August 01, 2007 contemplates that all disputes and differences arisen between the parties relating to the said agreement shall be adjudicated through arbitration of a sole 2 Arbitrator to be appointed jointly by the Chairman cum Managing Director of the petitioner and the respondent. According to the petitioner, as requested by the respondent it is supplying gaseous oxygen to the respondent in excess of the minimum offtake quantum mentioned in clause 1.0 of the said agreement dated August 01, 2007 but the respondent has failed to make payment for such excess quantum of gaseous oxygen. Thus, the petitioner claims that disputes and differences have arisen between the parties to the said agreement dated August 01, 2007 and by a letter dated November 28, 2019 the petitioner invoked the said arbitration agreement and requested the Chairman cum Managing Director of the respondent to concur with the appointment of the sole Arbitrator selected by them. The respondent, however, by its letter dated December 21, 2010 denied any liability to make any payment to the petitioner in excess of the amount being already paid. The respondent further refused to refer the disputes raised by the petitioner to arbitration.
In the above background of facts, learned Senior Counsel appearing for the petitioner prayed for appointment of a sole Arbitrator to adjudicate the disputes between the parties. Learned Counsel appearing for the respondent, however, could not dispute the existence of the arbitration agreement between the parties and that the disputes raised by the petitioner against the respondent are covered by the said arbitration agreement. He, however, submitted that the claim raised against the respondent by the petitioner is not maintainable.
3
Considering the facts of the case, it is evident that the existence of the arbitration agreement between the parties is not in dispute. The disputes raised by the petitioner against the respondent are squarely covered by the said arbitration agreement contained in clause 8.0 of the said agreement dated August 01, 2007. However, the parties have failed to agree to the appointment of the sole Arbitrator as contemplated in the said arbitration agreement. Thus, in view of the decision of the Supreme Court in the cases of Mayavati Trading Private Limited Vs. Pradyuat Deb Burman reported in (2019) 8 SCC 714 and Duro Felguera, SA Vs. Gangavaram Port Ltd. reported in (2017) 9 SCC 729, the present application filed by the petitioner succeeds.
Accordingly, Mr. Shyamaprosad Sarkar, Senior Advocate of Bar Library Club (First Floor) is appointed as the sole Arbitrator to adjudicate the disputes between the parties relating to the said agreement dated August 01, 2007. The Arbitrator shall be free to fix his fees and to engage the secretarial staff for conducting the arbitral proceeding.
The fees of the Arbitrator and the remuneration of the secretarial staff shall be borne by the parties in equal share.
With the above direction, the application, A.P. No. 26 of 2020 stands disposed of.
(ASHIS KUMAR CHAKRABORTY, J.) mg