Supreme Court - Daily Orders
Kla Const. Technologies Pvt Ltd vs The Embassy Of Islamic Republic Of Afgh. on 5 January, 2015
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
1
ITEM NO.403 COURT NO.9 SECTION XVIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
PETITION(S) FOR ARBITRATION (CIVIL) NO(S). 14/2014
KLA CONST. TECHNOLOGIES PVT LTD Petitioner(s)
VERSUS
THE EMBASSY OF ISLAMIC REPUBLIC OF AFGH. Respondent(s)
(WITH APPLN.(S) FOR EXEMPTION FROM FILING C/C OF THE ORIGINAL
AGREEMENT)
Date : 05/01/2015 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
For Petitioner(s) Mr. Anurag Pandey, Adv.
Mr. Niranjan Saha, Adv.
Mr. K. Shukla, Adv.
Ms. Reena Pandey, Adv.
Mr. G.R. Chaubey, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
The arbitration petition is disposed of in terms of the signed order.
[VINOD LAKHINA] [ASHA SONI] COURT MASTER COURT MASTER [SIGNED ORDER IS PLACED ON THE FILE] Signature Not Verified Digitally signed by Vinod Lakhina Date: 2015.01.06 16:37:04 IST Reason: 1 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION CASE (CIVIL) NO.14 OF 2014 KLA CONST. TECHNOLOGIES PVT.
LTD. ...PETITIONER
VERSUS
THE EMBASSY OF ISLAMIC REPUBLIC OF AFGHANISTAN ...RESPONDENT ORDER Heard learned counsel for the petitioner.
None has appeared on behalf of the respondent in spite of due service of notice.
In the absence of any representation on the part of the respondent and no objections having been filed, the Court proceeds on the basis that disputes and 2 differences between the parties, as claimed by the petitioner, have arisen which need resolution in terms of the arbitration clause in the Agreement, which is set out below:
“The dispute settlement mechanism to be applied pursuant to GCC Clause 25.3 shall be as follows:
(a) In case of Dispute or difference arising between the Employer and the contractor relating to any matter arising out of or connected with this agreement, such disputes or difference shall be settled in accordance with provisions of UNCITRAL Arbitration Rules. The arbitral tribunal shall consist of 3 arbitrators one each to be appointed by the Employer and the Contractor. The third Arbitrator shall be chosen by the two Arbitrators so appointed by the Parties and shall act as Presiding arbitrator. In case of failure of the two arbitrators appointed by the parties to reach upon a cosensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Minister, responsible for execution of the contract.3
(b) If one of the parties fails to appoint its arbitrator in pursuance of sub-clause (a) above within 30 days after receipt of the notice of the appointment of its arbitrator by the other party, then the Minister, responsible for execution of the contract, shall appoint the arbitrator. A certified copy of the order of the Minister, responsible for execution of the contract, making such an appointment shall be furnished to each of the parties.
(c) Arbitration proceedings shall be held at Kabul, Afghanistan, and the language of the arbitration proceedings and that of all documents and communications between the parties shall be English unless otherwise agreed by both the parties.
(d) The decision of the majority of arbitrators shall be final and binding upon both parties. The cost and expenses of Arbitration proceedings will be paid as determined by the arbitral tribunal. However, the expenses incurred by each party in connection with the preparation, presentation etc. of its proceedings as also the fees and expenses paid to the arbitrator appointed by such party or on its behalf shall be borne by each party itself.4
(e) Where the value of the contract is ISD 3 million (150 million afghan) and below, the disputes or differences arising shall be referred to the Sole Arbitrator. The Sole Arbitrator should be appointed by agreement between the parties; failing such agreement, by the appointing authority, namely Minister, responsible for execution of the contract.
(f) Performance under the contract shall continue during the arbitration proceedings and payments due to the contractor/supplier by the owners shall not be withheld, unless they are the subject matter of the arbitration proceedings. The place of arbitration shall be Embassy of Islamic Republic of Afghanisthan in New Delhi, India.” From the materials on record, it appears that the claim of the petitioner against the respondent is for an amount of Rs.31,55,259/-. The venue of the arbitration, therefore, will be Embassy of Islamic Republic of Afghanisthan in New Delhi, India 5 In the communication dated 10th February, 2012, addressed to the respondent by the petitioner, two names have been suggested for appointment as the sole Arbitrator. As the said notice/communication has not been responded and appearance has also not been made on behalf of the respondent before the Court, having regard to the facts stated above and the clauses of the Arbitration Agreement between the parties, Er. H.S. Dogra, Former Director General, Central PWD, A-7/1 M.S. Flats, Sector 13, R.K. Puram, New Delhi -110066, Phone 9818695335 is appointed as the Sole Arbitrator to go into the disputes and differences between the parties. The learned Arbitrator shall enter upon the reference at the earliest. The terms of appointment may be settled by the parties in consultation with the Arbitrator appointed by the Court.6
Let this order be communicated to the learned Arbitrator so that the arbitration proceedings can commence and conclude as expeditiously as possible.
The Arbitration Petition is disposed of in the above terms.
....................,J.
(RANJAN GOGOI) NEW DELHI JANUARY 05, 2015