Delhi High Court - Orders
Towell Engineering International Llp vs Cinda Engineering Construction ... on 31 October, 2023
Author: Sachin Datta
Bench: Sachin Datta
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 947/2023
TOWELL ENGINEERING INTERNATIONAL LLP ..... Petitioner
Through: Mr. Sindhu Sinha, Adv. (through VC)
versus
CINDA ENGINEERING CONSTRUCTION PRIVATE LIMITED
..... Respondent
Through: Mr. Kshitiz Arya, Adv.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 31.10.2023
1. The present petition filed under Section 11 of the Arbitration and Conciliation Act, 1996 (the "A&C Act") seeks constitution of an arbitral tribunal to adjudicate the disputes that have arisen between the parties.
2. Disputes between the parties have arisen with respect to an agreement dated 28.11.2019 executed between the parties for „Supply and Erection of Steel Structure of DLTPL Dhamra LNG Project Dhamra, Odisha for Dhamra LNG Terminal Private Limited‟ under which the petitioner was to provide and supply all work, services and equipment set forth in annexure 3 to the said agreement, which were necessary for the construction of an LNG terminal.
3. The applicable arbitration agreement between the parties, as contained in the agreement dated 28.11.2019, is reproduced as under:
"15.0 ARBITRATION 15.1 If any dispute or difference of any kind whatsoever shall arise between the Company and the Contractor in connection with, or arising out of the Contract, or the execution of the Contract Works, whether during the progress of the Contract Works or after their completion and whether before This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/11/2023 at 20:44:16 or after the termination, abandonment or breach of the Subcontract, it shall be referred to arbitration as hereinafter provided. All disputes or differences shall be referred to a tribunal comprising three (3) arbitrators under the (Indian) Arbitration and Conciliation Act, 1966. Each party to the arbitration shall appoint one (1) arbitrator and the two (2) arbitrators thus appointed shall choose the third arbitrator who will act as presiding arbitrator of the tribunal (together forming the "Arbitral Tribunal"). The decision(s) of the Arbitral Tribunal shall be final and binding on the Parties. The venue of arbitration shall be New Delhi. The governing law of the arbitration shall be the substantive laws of India.
15.2 If any dispute arises in connection with the Contract and the Contractor is of opinion that such dispute touches or concerns the Subcontract Works, then provided that the arbitrators have not already been agreed upon or appointed in pursuance of the preceding sub-clause, the Contractor may by notice in writing to the Subcontractor require that any dispute under this Subcontract shall be referred to the arbitrator to whom the dispute under the Contract is referred and if such arbitrator (hereinafter called the "joint arbitrator") is willing so to act, such dispute under this Subcontract shall be so referred to. In such event, the joint arbitrator may, subject to the consent of the Company, give such directions for determination of the two said disputes either concurrently or consecutively as he may think just and convenient and provided that the Subcontractor is allowed to act as a party to the dispute between the Company and the Contractor. The joint arbitrator may in determining the dispute under this Subcontract take account of all material, facts proved before him in the dispute under the Contract. 15.3 If at any time before an arbitrator has been agreed upon or appointed in pursuance of sub-clause 15.1 of this Clause, any dispute arising in connection with the Contract is made the subject of proceedings in any court between the Company and the Contractor, and if the Contractor is of the opinion that such dispute touches or concerns the Subcontract Works, he may, by notice in writing to the Subcontractor, abrogate the provisions of sub-clause 15.1 of this Clause and thereafter no dispute under this Sub- contract shall be referable to arbitration without further submission by the Contractor and the Subcontractor.
15.4 The execution of the Subcontract Works shall continue during arbitration proceedings unless the Contractor shall order the suspension thereof or for any part thereof."
4. Disputes having arisen between the parties, the petitioner issued a notice invoking arbitration dated 28.07.2023, whereby the petitioner inter alia suggested a name of an arbitrator to be appointed as its nominee arbitrator, and called upon the respondent to take further steps for This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/11/2023 at 20:44:16 constituting the arbitral tribunal.
5. The respondent vide letter dated 28.08.2023 addressed to the petitioner, proposed that the disputes between the parties be adjudicated by a sole Arbitrator instead of a three-member arbitral tribunal.
6. In the present case, there is no controversy as regards existence of a valid arbitration agreement. As such, there is no impediment to constituting an arbitral tribunal to adjudicate the disputes between the parties. Respective counsel for the parties jointly request that an independent sole arbitrator be appointed to adjudicate the disputes between the parties.
7. Accordingly, as jointly prayed, Mr. Justice (Retd.) Vineet Saran, Former Judge, Supreme Court of India, (Mob. No. 7897420209) is appointed as the sole Arbitrator to adjudicate the disputes between the parties.
8. The learned sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties requisite disclosures as required under Section 12 of the A&C Act.
9. The learned sole Arbitrator shall fix his fees in consultation with the parties.
10. The parties shall share the fee of the learned sole Arbitrator and the arbitral costs, equally.
11. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned sole Arbitrator on their merits, in accordance with law.
12. The present petition stands disposed of in the above terms.
OCTOBER 31, 2023/dk SACHIN DATTA, J This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 06/11/2023 at 20:44:17