Bombay High Court
Schindler India Pvt. Ltd vs Sai Balaji Developer on 9 November, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
9.arbap.74.21..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
ORDINARY ORIGINAL CIVIL JURISDICTION
ANJALI ANJALI TUSHAR
TUSHAR ASWALE
ASWALE
Date: 2022.11.10
16:47:58 +0530
ARBITRATION APPLICATION NO. 74 OF 2021
Schindler India Pvt Ltd ..Applicant
Vs.
Sai Balaji Developer ..Respondent
WITH
COMMERCIAL ARBITRATION PETITION NO.24 OF 2022
Schindler India Pvt Ltd ..Petitioner
Vs.
Sai Balaji Developer ..Respondent
Ms. Shilpa Kapil, for the Applicant.
None for the Respondent.
CORAM:- B. P. COLABAWALLA,J.
DATE :- NOVEMBER 9, 2022.
P. C.:
Commercial Arbitration Petition No.24 of 2022 is filed under Section 9 of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act") seeking various interim reliefs. Arbitration Application No.74 of 2021 is filed under Section 11 of the Arbitration Act, 1996 for appointment of a Sole Arbitrator to adjudicate the disputes and differences between the Applicant and the Respondent arising out of an Agreement dated 9th September, 2014 (Exhibit-A to the Application). Under this Agreement, the Applicant was to supply Aswale page 1 of 5
9.arbap.74.21..doc elevators to the Respondent for their project Atlanta Edenworld Building 1, 2 and 3.
2 The Arbitration Agreement between the parties can be found at Clause 18 of the Agreement which reads thus:-
"18.Arbitration If any dispute, controversy or claim between the parties arises out of or in connection with this Contract, including its existence, breach, termination or validity thereof, the parties shall use all reasonable endeavors to negotiate with a view to resolve the dispute amicably. If the dispute has not been settled pursuant to the said negotiations even after 15 days, either of the parties can give the other party a notice stating that a dispute has been arisen. If the parties are unable to resolve the dispute amicably within 15 days of service of the said notice (or such longer period as the parties may mutually agree), then the dispute shall be finally resolved by arbitration as per the provisions of Arbitration and Conciliation Act, 1996 by a sole arbitrator to be appointed by Schindler from the panel of arbitrators maintained by Schindler. Such panelists shall be persons who is holding or has held the positions of not less than a District Judge or High Court advocate or a professional arbitrator. Any such arbitration award passed by the said Arbitrator shall be final and binding on both the parties. The seat of the arbitration shall be Mumbai and the language of the arbitration shall be English."
3 Since the disputes arose between the parties, the Applicant invoked the Arbitration Clause by its notice dated 15 th July, 2020. Since service could not be effected of this notice by Post, the same was also Aswale page 2 of 5
9.arbap.74.21..doc sent by email on 17th July, 2020. Despite service of the invocation notice, there was no reply to the same.
4 Today when the matter is called out, none appears on behalf of the Respondent. The Respondent has been duly served as evidenced by the service report of this Court dated 16 th July, 2022 as well as the affidavit of service filed by the Applicant dated 15 th July, 2022. The said affidavit of service clearly records that the above application is served on the Respondent by email as well as by Whats- app messages.
5 I am satisfied that the Respondent has been duly served and despite service has not appeared today. No affidavit in reply is also filed controverting any of the statements made in the above Section 11 application. I am also satisfied that there are disputes between the parties that need to be resolved through the process of arbitration. In these circumstances, the following order is passed:-
(a) Mr. Vivek V. Khemka, an advocate of this Court, having his address as "9/53, Bhupen Chembers, 3rd floor, Dalal Street, Fort, Mumbai- 400 001 and Mobile No.9821485852, is hereby appointed to act as a Sole Arbitrator to decide upon the disputes and differences between the Applicant and the Respondent arising out of and/or in connection with and/or in relation to the Agreement dated 9 th September, 2014 (Exhibit-A to the Application) Aswale page 3 of 5
9.arbap.74.21..doc
(b) A copy of this order will be communicated to the learned Sole Arbitrator by the advocates for the Applicant within a period of one week from today.
(c) The learned Sole Arbitrator is requested to forward his Statement of Disclosure under Section 11 (8) read with Section 12 (1) of the Arbitration Act to the advocates for the Applicant so as to enable them to file the same in the Registry of this Court. The Registry of this Court shall retain the said Statement on the file of this application and a copy of the same shall be furnished by the advocates for the Applicant to the Respondent.
(d) The parties shall appear before the learned Sole Arbitrator on such date and at such place as he nominates to obtain appropriate directions with regard to fixing a schedule for completing pleadings etc. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed.
(e) Contact and communication particulars shall be provided by both sides to the learned Sole Arbitrator within a period of one week from today. This information shall include a valid and functional email address as well as mobile numbers of the respective advocates.
(f) All arbitral costs and fees of the Arbitrator will be borne by both sides equally and will be subject to the final Award that may be passed by the Tribunal. For any reason, if the Respondent does not appear before the Arbitral Tribunal, then all the arbitral costs and fees of the Arbitrator shall be borne, at the first instance, entirely by the Applicant and shall be subject to any final Award passed by the Arbitral Tribunal in that regard.
(g) The Arbitral Tribunal shall charge its fees as per the 4 th Aswale page 4 of 5
9.arbap.74.21..doc Schedule of the Arbitration Act read with the Bombay High Court (Fee payable to Arbitrators) Rules, 2018. 6 The above Section 9 Petition shall be treated, heard and disposed of by the Arbitral Tribunal as an application under Section 17 of the Arbitration Act. The Respondent shall be at liberty to file its affidavit in reply to the above converted Section 17 application before the Arbitral Tribunal. If either party wants to file any further affidavit/s and/or compilation/s, it may do so with the leave of the Tribunal. If for any reason, the Respondent chooses not to appear before the Arbitral Tribunal, it shall decide the above converted Section 17 application in their absence.
7 The above Section 9 Petition as well as the above Section 11 Application are disposed of in the aforesaid terms. However, there shall be no order as to costs.
8 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Aswale page 5 of 5