Delhi High Court - Orders
Swaranjit Singh Narula Security Agency vs National Thermal Power Corporation Ltd ... on 9 November, 2022
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 745/2022
SWARANJIT SINGH NARULA SECURITY
AGENCY ..... Petitioner
Through: Mr. Tarun Bhati, Advocate
(M. 9953232315)
versus
NATIONAL THERMAL POWER CORPORATION LTD
NTPC AND ANR ..... Respondents
Through: Mr. Anish Gupta and Mr. Om
Gulati, Advocates for
respondents (M. 9560322297).
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 09.11.2022 [Physical Hearing/ Hybrid Hearing]
1. This is a petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator.
2. Petitioner's case is that they entered into a purchase order for security surveillance and allied services at the NTPC's office at PMI Noida and NETRA Greater Noida for a sum of Rs.2,56, 21,765/- to be paid by the respondents to the petitioner agency. Subsequently, a contract was signed between the parties on 01.04.2015. The contract between the parties got completed successfully on 30 th April, 2017. However, since the said date, only part payment was received by the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:15.11.2022 12:11:48 petitioner. The petitioner followed up for the payments regularly since May, 2017 till date.
3. A notice for invoking the arbitration clause as per the agreement dated 01.04.2015 was sent to the respondents, however no response to the same has been received till date.
4. Reply has been filed on behalf of the respondent, wherein the respondent has taken primarily two objections. The first objection is with respect to the fact that the petitioner has acknowledged that it has received full and final payment due and payable to them. Thus, it is submitted that no payment certificate was issued in favour of respondent by the petitioner. The second objection raised on behalf of the respondent is that the procedure as specified in Clause 64 of the Instructions To Bidder (ITB) has not been followed by the petitioner. Thus, he submits that the present dispute cannot be referred to arbitration.
5. On the other hand, learned counsel for the petitioner submits that there is no full and final settlement and rather the petitioner has claims to the extent of Rs.35 lakhs (approximately) along with interest against the respondent. He further submits that the procedure as given in Clause 64 of the ITB has been duly followed.
6. It is submitted that the petitioner has written a letter dated 26.07.2020 by which arbitration clause was also invoked. Pursuant to the said letter dated 26.07.2020, a letter dated 25.11.2020 came to be written by the respondent to the petitioner, wherein it was stated that the disputes as raised by the petitioner were referred to Standing Committee of the respondent.
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:15.11.2022 12:11:487. Learned counsel appearing for the respondent submits that the claims as raised by the petitioner were duly considered by the standing committee of the NTPC in terms of the internal mechanism. However, the said internal mechanism has not been fruitful.
8. Learned counsel for the respondent submits that as per Clause 64 ITB, the petitioner was required to nominate one Arbitrator, thereafter the respondent was required to nominate one Arbitrator and thereafter, the two Arbitrators were to nominate the Presiding Arbitrator as the Arbitral Tribunal was to consist of three Arbitrators.
9. On the other hand, learned counsel appearing for the petitioner submits that since the claims as raised by the petitioner are only approximately Rs.35 lakhs along with interest, therefore instead of three Arbitrators, a Sole Arbitrator may be appointed by this Court.
10. It is seen from the record that the arbitration clause is contained in Clause of 64 of ITB, which is reproduced as below:
"64.0 ARBITRATION If any dispute(s)or difference(s) of any kind whatsoever arise between the Parties hereto in connection with or arising out of this Contract, the Parties hereto shall negotiate with a view to its amicable resolution and settlement. In the event no amicable resolution or settlement is reached within a period of thirty (30) days from the date on which the dispute(s)or difference(s) arose, such dispute(s) or differences shall be referred to and settled by arbitral tribunal comprising of three(3) arbitrators, one to be appointed by each party, the third arbitrator to be appointed by both the arbitrators. In case of difference(s), the third arbitrator shall be appointed by the Hon'ble Chief Justice of Delhi High Court or the Institution of Engineers or the Authority Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:15.11.2022 12:11:48 nominated/authorized by him in this regard. The arbitration proceedings shall be in accordance with the prevailing Arbitration Laws of India as amended or enacted from time to time. The existence of any dispute(s) or difference(s) or the initiation or continuance of the arbitration proceedings shall not permit the Parties to postpone or delay the performance by the parties of their respective obligations pursuant to this Contract. The venue of the arbitration shall be Delhi, India.
In the event of dispute or difference arising between one Public Sector Enterprise and a Government Department the provision of BPE as per memorandum No. OPE OM No DPE/4(10)/2001-PMA-GL I dated 22nd Jan. 2004 shall be applicable."
11. The arbitration clause is not disputed by any of the parties.
12. In view thereof, there is no impediment, if this Court appoints a Sole Arbitrator, considering the request on behalf of the petitioner that the matter be referred to Sole Arbitrator instead of an Arbitral Tribunal of three Arbitrators, since the claims raised by the petitioner is a small amount.
13. In view thereof, the present petition is allowed.
14. Mr. Aman, Advocate (Phone No. 9818065100) is appointed as the learned Sole Arbitrator to adjudicate upon the disputes between the parties.
15. Parties are directed to seek requisite disclosures under Section 12 of the Arbitration and Conciliation Act, 1996 from the learned Sole Arbitrator before commencement of arbitration proceedings.
16. The learned Sole Arbitrator shall be entitled to fee as stipulated in the Fourth Schedule to the Act or as may be agreed to by the parties Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:15.11.2022 12:11:48 with the learned Arbitrator.
17. All rights and contentions of all parties are left open for consideration by the learned Sole Arbitrator.
18. With the aforesaid directions, the present petition is disposed of.
MINI PUSHKARNA, J NOVEMBER 9, 2022 PB Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:15.11.2022 12:11:48