Delhi High Court - Orders
Kone Elevator India Private Limited vs Chd Developers Limited on 16 March, 2021
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 303/2020
KONE ELEVATOR INDIA PRIVATE LIMITED ..... Petitioner
Through: Mr Kunal Kher, Advocate.
versus
CHD DEVELOPERS LIMITED ..... Respondent
Through: Mr C. S. Gupta, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 16.03.2021
1. The petitioner has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereafter the 'A&C Act'). The petitioner was awarded a contract for design, supply, installation, testing and commissioning of KONE passenger lifts in terms of a Letter of Award (LoA) dated 25.05.2012. The petitioner claims that disputes have arisen in connection with the said contract inasmuch as, according to the petitioner, the respondent had failed and neglected to pay an outstanding amount of ₹16,69,206/-. The terms and conditions, as set out in the LoA, includes an Arbitration Clause, which reads as under:-
"DISPUTE RESOLUTIONS BY ARBITRATION:
All the disputes and differences arising out of or in connection with the scope of this Letter of Award shall be attempted to resolve mutually through negotiations between the parties failing which the same shall be referred to and decided by an Arbitrator to be appointed by mutual consent of CHD Developers Limited and M/s Kone Elevator India Signature Not Verified Digitally Signed By:DUSHYANT RAWAL (P) Ltd. The decision of that Arbitrator shall be final and binding upon the parties. The provision of Arbitration and Reconciliation Act, 1996 shall be applicable to such arbitration proceedings. That the venue of arbitration shall be at New Delhi."
2. The petitioner sent a legal notice dated 28.08.2018 calling upon the respondent to pay the aforesaid amount of ₹16,69,206/- along with interest at the rate of 18% per annum. Thereafter, on 20.05.2020, the petitioner sent another notice invoking the Arbitration Clause and sought concurrence of the respondent to appoint an Arbitrator. The petitioner states that it has not received any response to the said notice as yet.
3. Notice in the present petition was issued on 19.08.2020. Despite sufficient time, the respondent has not filed any response to the present petition. It is also seen that the present petition has been adjourned on more than one occasion at the request of the learned counsel for the respondent.
4. The learned counsel for the respondent has opposed the present petition on two grounds. First, he submits that the petitioner's claim is barred by limitation and second that the LoA has not been signed by the petitioner.
5. The learned counsel for the petitioner disputes the same and states that the averments made in the present petition clearly indicate that the petitioner has accepted the LoA. He submits that the petitioner had also effected supplies pursuant to the said LoA and issued invoices for the same. The respondent does not dispute that it had accepted the delivery of the goods on the terms as agreed under the said LoA.
6. In the given circumstances, this Court finds that an Arbitration Signature Not Verified Digitally Signed By:DUSHYANT RAWAL Agreement exists between the parties and admittedly, the respondent had the LoA, which contains the Arbitration Clause, and the parties had acted accordingly. The scope of the present petition is limited to examining the question of the Arbitration Agreement. Undisputedly, an Arbitration Agreement exists between the parties. It is also apparent that the petitioner had invoked the Arbitration Clause and the parties have been unable to concur on the appointment of an Arbitrator.
7. In view of the above, this Court considers it apposite to allow the present petition. Accordingly, Mr. Ram Bhagat Singh, Retd. ADJ (Mobile No- 9910384748) is proposed to be appointed as a Sole Arbitrator to adjudicate the disputes that have arisen between the parties. The parties are at liberty to approach the learned Arbitrator for eliciting his consent and disclosure as required under Section 12(1) of the A&C Act. Let the same be furnished before the next date of hearing.
8. List on 09.04.2021.
VIBHU BAKHRU, J MARCH 16, 2021 MK Signature Not Verified Digitally Signed By:DUSHYANT RAWAL