Bombay High Court
M/S.Talib & Shamsi Constructions ... vs M/S. Dsk Developers Limited on 14 December, 2018
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
kpd 1 / 3 937-ARP-128-2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO. 128 OF 2018
M/s. Talib and Shamsi Constructions Private Limited ... Petitioner
Versus
M/s. DSK Developers Limited ... Respondent
Ms. Vaishali Choudhari for the Petitioner.
CORAM : S.J. KATHAWALLA, J.
DATED : 14th DECEMBER, 2018 P.C.:
1. The Petitioner - M/s. Talib and Shamsi Constructions Private Limited has filed the above Arbitration Petition against the Respondent under Section 11 of the Arbitration and Conciliation Act, 1996, as amended by Arbitration and Conciliation (Amendment) Act, 2015 (the Act) for appointment of a sole Arbitrator to resolve the disputes that have arisen between the parties under the Work Order dated 29 th September, 2014.
2. The Respondent invited tenders for the construction of Start Up Parcel (SUP) of DSK Dream City Township at Phursungi, Pune along Pune Solapur Highway (NH-
9). The said work comprised of 8 towers of varying heights along with basement and podiums to be constructed using conventional formwork for the lower non-typical areas and aluminum system formwork for the typical residential areas. In response to ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 07:34:42 ::: kpd 2 / 3 937-ARP-128-2018.doc the said tender floated by the Respondent, the Petitioner submitted their bids to the Respondent on or about 20th June, 2014. Thereafter negotiations took place between the Petitioner and the Respondent's representatives and the Petitioner submitted their final bid to the Respondent on 25 th July, 2014. Accordingly, the Respondent vide their letter dated 29th July, 2014 issued notice to the Petitioner to proceed with the work. The said letter is signed by the Petitioner as well in token of acceptance of the contract. Upon receipt of the notice to proceed with the work dated 29 th July, 2014, the Petitioner started mobilization work at site. A formal contract document between the parties was signed sometime on 29 th September, 2014 which contained the Arbitration Clause being Clause No. 3.23 which reads as under :
"3.23 - Arbitration.
Any Dispute or difference arising under this contract will be settled under the provisions of the Indian Arbitration & Conciliation Act 1996 and the rules framed thereunder from time to time. The Arbitration proceedings will be conducted in Pune and the proceedings will be conducted in English language. Cost of arbitration will be borne equally by the Developer and Contractor."
3. Disputes arose between the parties, because of which the Petitioner by its letter dated 20th April, 2018 addressed to the Respondent invoked the arbitration clause. The Respondent has also not replied to the said Petition. The Petitioner is therefore constrained to file the above Petition.
4. The Respondent has not appeared before this Court though served. The Respondent has also not replied to the said letter.
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5. In view of the above, I am satisfied that there exists a valid Arbitration Agreement between the parties. The Respondent has failed to respond to the Notice invoking arbitration. The Respondent has also not filed any reply to the above Petition despite service. In the circumstances, all the submissions / averments made in the Petitions have remained uncontroverted. The Respondent has failed to appoint an Arbitrator to resolve the disputes. Hence, the following order :
(i) The Court proposes to appoint Mr. Anurag Jain, Advocate as a sole Arbitrator to decide the disputes between the Petitioner and the Respondent arising out of the Work Order dated 29th September, 2014. In view thereof, Mr. Anurag Jain, Advocate shall submit his disclosure under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996 as amended by the Arbitration and Conciliation (Amendment) Act, 2015 on or before 20th December, 2018.
(ii) The Advocate for the Petitioner shall forward a copy of this order to Advocate Mr. Anurag Jain as well as to the Respondent.
(iii) All concerned to act on an ordinary copy of this order, duly authenticated by the Learned Associate of this Court.
Stand over to 20th December, 2018.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 15/12/2018 ::: Downloaded on - 27/12/2018 07:34:42 :::