Karnataka High Court
Zamil Construction India Pvt Ltd vs Shimizu Corporation India Pvt. Ltd. on 9 December, 2020
Author: S R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9TH DAY OF DECEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
CIVIL MISCELLANEOUS PETITION NO.148 OF 2020
BETWEEN:
ZAMIL CONSTRUCTION INDIA PVT. LTD.
OFFICE NO.101, FIRST FLOOR
PLOT NO.2, S.NO.8
ALMONTE SOFTWARE PARK
KHARADI - 411 014, PUNE
MAHARASHTRA
(REP. BY ITS AUTHORIZED
REPRESENTATIVE
SHRI.ARAVINTHAN MAYAPERUMAL)
ALSO AT ZAMIL CONSTRUCTION
INDIA PVT. LTD. #6, 2ND FLOOR
ASHA TOWERS, 35/13
LANFORD ROAD CROSS
BENGALURU - 560 025 ... PETITIONER
(BY SRI. MRINAL BERI, ADV. AND
SRI. BHANU PRASAD R. V. A., ADV.)
AND:
SHIMIZU CORPORATION INDIA PVT.LTD.
130, SAROJINI MARKET
NEW DELHI - 110 023
REP. BY ITS CHAIRMAN AND
MANAGING DIRECTOR
ALSO AT SHIMIZU CORPORATION
INDIA PRIVATE LIMITED, NO.2
PRESTIGE EMARALD, 5TH FLOOR
LEVELLE ROAD, MADRAS BANK ROAD
2
BANGALORE - 560 001, KARNATAKA
... RESPONDENT
(BY SMT. POORNIMA HATTI, ADVOCATE)
THIS CMP IS FILED UNDER SECTION 11(6) OF
THE ARBITRATION AND CONCILIATION ACT, 1996
PRAYING TO APPOINT A SOLE ARBITRATOR IN THE
SUBJECT MATTER IN TERMS OF CLAUSE 22 (GENERAL
CONDITIONS OF SUBCONTRACT AGREEMENT) OF THE
SUBCONTRACT AGREEMENT DATED 18TH JUNE, 2018
(EFFECTIVE FROM 30TH JULY, 2018) BEARING
SUBCONTRACT NO.SCIPL/KCEI-EXTN/2018-
19/PROC/AGR/008, TO ADJUDICATE ALL THE DISPUTES
BETWEEN THE PETITIONER AND RESPONDENT ARISING
OUT OF OR IN CONNECTION WITH THE SUBCONTRACT
AGREEMENT DATED 18TH JUNE, 2018 (EFFECTIVE FROM
30TH JULY, 2018) BEARING SUBCONTRACT
NO.SCIPL/KCEI-EXTN/2018-19/PROC/AGR/008, WHICH
WAS ENTERED INTO BETWEEN THE PETITIONER AND
THE RESPONDENT FOR THE PROJECT IN QUESTION,
AND ETC.
THIS CMP COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner-Zamil Construction India Pvt. Ltd. against respondent-Shimizu Corporation India Pvt. Ltd., seeking an appointment of an Arbitrator in pursuance of Clause-22 of the Sub-Contract Agreement vide Annexure-C dated 18.06.2018.
3
2. Clause-22 of the said Agreement, which is an Arbitration clause reads as under:-
"22. ARBITRATION In the event of any dispute or difference between the Main Contractor and the Subcontractor, whether arising during the execution or after the completion of the Works or after the termination of the employment of the Subcontractor under the Subcontract and/or termination of the Subcontract (whether by breach or in any other manner), in regard to any matter or thing of whatsoever nature arising out of and in connection with the Subcontract including the breach, termination or invalidity thereof. Either party shall give to the other party a notice in writing of such dispute or difference and the same shall be discussed and resolved amicably. In case the dispute or difference cannot be resolved within a period of thirty (30) days from the date of notice, the same shall be referred to arbitration in accordance with the provisions of the Indian Arbitration and Conciliation Act 1996, presided by a sole arbitrator to be appointed in accordance with the provisions of the Indian Arbitration and Conciliation Act 1996. The venue of the 4 arbitral proceedings shall be at Bangalore (Karnataka), India and all proceedings shall be conducted in English. The award of the arbitrator shall be final and binding on both parties and may be enforceable in any court having jurisdiction thereof."
3. It is submitted that the requisite notice of request for reference to arbitration was given by the petitioner to the respondent vide Annexure-G dated 14.08.2020. A reply to the said notice was given by the respondent along with preliminary reply both dated 27.08.2020, in response to the legal notice dated 29.07.2020 vide Annexure-E. Subsequently, the parties have somehow failed to mutually agree for the appointment of the Sole Arbitrator in the present case. Hence, the petitioner is before this Court by way of this petition to appoint the Sole Arbitrator to resolve their disputes.
4. Learned counsel for the respondent submits that in view of the pre-arbitration dispute resolution mechanism provided in the Agreement by way of mediation, the present petition is premature and is liable to be dismissed. 5
5. Per contra, learned counsel for petitioner submits that petitioner has no objection to refer the dispute to mediation for amicable settlement before the same is referred to arbitration and the petition may be disposed of accordingly.
6. In view of the aforesaid facts and circumstances coupled with the submissions made by the learned counsel from both sides, since the Arbitration clause exists in the aforesaid Agreement entered into between the parties and an arbitral dispute also exists and by directing the parties to attempt to resolve the dispute by way of mediation, this Court is of the opinion that the present petition deserves to be allowed under Section 11 of the Act by directing the matter to be referred to mediation by appointing an independent Mediator who will tried to amicably resolve the dispute and in the event of failure of mediation, the dispute is to be referred to Arbitration.
7. In the result, I pass the following:
ORDER
i) Petition is hereby allowed.6
ii) In the first instance, the dispute between the petitioner and respondent is referred to mediation by appointing the following Mediator to resolve the dispute between the parties.
Sri.N.Prashanth Chandra, Advocate, No.1432/2, 'SLR Arcade', I Floor, Krishna Devaraya Road, Opp. to KASSIA Building, Vijayanagar, Bengaluru-40 Mobile No: 98807 37800
iii) The parties undertake to appear before the aforesaid learned Mediator on 04.01.2021 at the venue to be fixed by the learned Mediator.
(iv) The learned Mediator is directed to mediate and resolve the dispute between the parties within a period of two months from 04.01.2021 and submit a status report to this Court as well as to the Arbitration and Conciliation Centre, Khanija Bhavan, Bengaluru on or before 08.03.2021.
v) The learned Mediator is free to fix the fees payable by the parties, which is to be shared equally.
vi) In the event the dispute between the parties does not get resolved by mediation as stated supra, the matter 7 shall stand referred to the Arbitration and Conciliation Centre, Khanija Bhavan, Bengaluru to take up the matter for arbitration.
vii) Upon receipt of a failure report by the learned Mediator, the arbitration centre is directed to proceed with arbitration by constituting an arbitral Tribunal comprising of a sole Arbitrator to be appointed on 08.03.2021 by this Court.
viii) All claims and contentions of any of the parties including jurisdiction, limitation, etc., are left/kept open to be decided by the Arbitral Tribunal.
ix) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.
x) Registry is directed to communicate this order to the learned Mediator as well as to the Arbitration and Conciliation Centre, Bengaluru, forthwith. List for compliance on 10.03.2021.
Sd/-
JUDGE MH/-