Madras High Court
M/S.Kone Elevator India Pvt Ltd vs M/S.Windsor Cyber Park Llp on 18 September, 2024
Arb.O.P (Com.Div.) No. 255 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.09.2024
CORAM
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
Arb.O.P (Com.Div.) No. 255 of 2024
M/s.Kone Elevator India Pvt Ltd
Plot No.A-28 Sipcot Industrial Park
Pillaipakkam, Sriperumpudur Taluk,
Kancheepuram District,
Tamil Nadu – 602 105.
Rep through its Authorized Signatory
Mr.C.V.S.Krishnakumar ...Petitioner
-vs-
M/s.Windsor Cyber Park LLP
Having Registered Office
D-10, Laxmi Nagar
New Delhi – 110092
rep by its partner Mr.Sunil Chopra. ... Respondent
PRAYER: Arbitration Original Petition filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996 to appoint petitioner's nominee
Ms.Rathina Asohan, as the sole arbitrator under Contract dated
16.05.2013 bearing Reference No.KEI/0050/0002755343 in accordance
with Section 11(6)(a) of the Arbitration and Conciliation Act, 1996.
For Petitioner : Mr.N.P.Vijayakumar
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Arb.O.P (Com.Div.) No. 255 of 2024
For Respondent : Mr.R.Kumar
ORDER
This Arbitration Original Petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 to appoint petitioner's nominee Ms.Rathina Asohan, as the sole arbitrator under Contract dated 16.05.2013 bearing Reference No.KEI/0050/0002755343 in accordance with Section 11(6)(a) of the Arbitration and Conciliation Act, 1996.
2. The case of the petitioner is that the petitioner has entered into an agreement dated 16.05.2013 with M/s.Era Infra Engineering Ltd., for supply, installation, testing and commissioning of 2 numbers of passenger elevators. The invoices raised by the petitioner was not honoured by the said entity. Further the petitioner had received an Email dated 23.05.2018 from the respondent indicating that they have purchased the property under SARFAESI proceedings and they had envisaged an intention to proceed with the contract dated 16.05.2013. However, when the petitioner had replied indicating that there had been certain dues pending from the entity, a reply was sent by the respondent 2/ 6 https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No. 255 of 2024 that they do not want to pursue the contract further. Hence, the petitioner had issued notice invoking Section 21 of the Arbitration Act, which had evoked no response. Hence, the petitioner had approached this Court for appointment of an Arbitrator.
3. Countering the arguments, the learned counsel for the respondent would submit that there was no agreement that had been entered upon between the petitioner and the respondent. He would submit that the respondent in a SARFAESI proceedings had purchased the property belonging to an entity with which the petitioner had entered into an agreement. After the purchase of the property, having found that the petitioner had been engaged in service of providing two passenger elevators, the respondent had approached the petitioner to complete the work. However, he came to knowledge that the erstwhile entity had an outstanding amount, the respondent did not want to proceed any further. Therefore, there is no contract between the petitioner and the respondent, whatsoever in any manner including an arbitration agreement. Hence, he submits that the present petition itself is not maintainable and seeks dismissal of the same.
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4. Heard the learned counsel for the petitioner and the learned counsel for the respondent and perused the materials available on record.
5. It is admitted case, the petitioner had entered into a contract with the M/s.Era Infra Engineering Ltd., which contain an arbitration clause. The learned counsel for the petitioner had also relied upon the clause relating to vesting of title in the passenger elevators. Admittedly, this agreement has been entered into between the petitioner and the said entity in the year 2013. Till 2018 the petitioner had not taken any steps for recovery of money or even to complete the execution of the work.
6. Only on receipt of an Email from the respondent, the petitioner had sought for payment of outstanding due from the entity with whom it had entered into a contract and based upon the said communication the petitioner is now trying to resurrect the dead wood by seeking for an appointment of Arbitrator, of a dispute which had originally arisen between the petitioner and the said entity. It is to be noted that there is no contract between the parties in this petition, which contains clause for 4/ 6 https://www.mhc.tn.gov.in/judis Arb.O.P (Com.Div.) No. 255 of 2024 arbitration.
7. In view of the aforesaid reasons, I do not find any merits in the petition and accordingly, the original petition is dismissed. No costs.
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