Delhi High Court - Orders
M/S Solar Optimised Line Private ... vs M/S India Sme Technology Services ... on 25 January, 2023
Author: Navin Chawla
Bench: Navin Chawla
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 772/2022
M/S SOLAR OPTIMISED LINE PRIVATE LIMITED THROUGH
SHRI ANKIT GROVER, DIRECTOR
..... Petitioner
Through: Mr.Sanjay Bansal, Adv.
versus
M/S INDIA SME TECHNOLOGY SERVICES LIMITED & ANR.
..... Respondents
Through: Mr.Bhanu Pratap Sindhu, Adv. for R-
1.
Mr.S.Rajappa & Mr.R.Gowrishankar,
Advs. for R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 25.01.2023
1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') seeking appointment of a Nominee Arbitrator for the respondents in terms of the Arbitration Agreement contained in Clause 12 of the Tender document for 'Implementation of 18.78 MW Grid Connected Rooftop Solar PV System in Jawahar Navodaya Vidyalayas located in different states/union territory of India under RESCO Model' floated by the respondent no. 1.
2. Clause 12 of the tender document is reproduced hereinunder:-
"12. SETTLEMENT OF DISPUTE 12.1 If any dispute of any kind whatsoever arises between NVS/ Rooftop Owner and Successful bidder in connection with or arising out of the contract including without prejudice to the generality of the Signature Not Verified Digitally Signed By:SUNIL Signing Date:27.01.2023 19:53:19 foregoing, any question regarding the existence, validity or termination, the parties shall seek to resolve any such dispute or difference by mutual consent.
12.2 If the parties fail to resolve, such a dispute or difference by mutual consent, then the dispute shall be referred by either party by giving notice to the other party in writing of its intention to refer to arbitration as hereafter provided regarding matter under dispute. No arbitration proceedings will commence unless such notice is given. Any dispute in respect of which a notice of intention to commence arbitration has been given in accordance with Sub Clause 12.1, shall be finally settled by arbitration."
3. Disputes having arisen between the parties, namely, petitioner and the respondent no.2, the petitioner invoked the Arbitration Agreement by its notice dated 03.03.2021 addressed to the respondent no.2. The respondent no.2 vide its letter dated 03.12.2021, however, submitted that the dispute raised by the petitioner does not fall within the ambit and scope of Clause 17.7(c) of the Power Purchase Agreement.
4. Faced with the above, the petitioner by a notice dated 24.01.2022 addressed to the respondent no.1, invoked the Arbitration Agreement as contained in Clause 12 of the Tender.
5. The learned counsel for the respondent no.1, placing reliance on Clause 1.4 of Part II of the Instructions to Bidders (in short, the 'ITB') of the Tender Documents, submits that the respondent no.1 had floated the above Tender for and on behalf of the respondent no.2. He submits that therefore, the respondent no.1 cannot be referred to arbitration. He further submits that the claim raised by the petitioner is even otherwise not maintainable as it is the condition of the Tender itself that the respondent no.1 shall not be responsible for non-payment or delay in payment of the incentive by the Signature Not Verified Digitally Signed By:SUNIL Signing Date:27.01.2023 19:53:19 Ministry of New and Renewable Energy (in short, the 'MNRE').
6. The learned counsel for the respondent no.2, on the other hand, submits that the Tender in question was floated by the respondent no.1, though for the rooftop solar panels to be installed on the school buildings of the respondent no.2, however, for and on behalf of the MNRE. He submits that the respondent no.1 was not acting as an agent of the respondent no.2 in floating the said Tender. He further submits that Tender would, therefore, be a contract between the petitioner and the respondent no.1.
7. I have considered the objections of the respondents.
8. As far as the respondent no.1 is concerned, in view of Clause 12 of the Tender document, it cannot deny the existence of the arbitration agreement between the parties. Clause 12, where it refers to the disputes between the NVS/Rooftop Owner and the successful bidder, merely identifies the nature of the disputes that will be referred to arbitration. Eventually whether the plaintiff will or will not succeed in its claim in such arbitration is not to be considered by this Court while appointing an Arbitrator in terms of the Arbitration Agreement between the parties.
9. On the objection of the respondent no.2, the learned counsel for the petitioner submits that present arbitration may be directed only against the respondent no.1 by appointing an Arbitrator for the respondent no.1. He submits that this, of course, shall be without prejudice to the rights and contentions of the petitioner.
10. In view of the above, as the existence of the Arbitration Agreement in form of Clause 12 of the Tender Documents cannot be denied by the respondent no.1 and the same has been duly invoked by the petitioner vide letter dated 24.01.2022 nominating its own Arbitrator, I do not see any Signature Not Verified Digitally Signed By:SUNIL Signing Date:27.01.2023 19:53:19 impediment in appointing a Nominee Arbitrator for the respondents.
11. I accordingly appoint Dr. H. L. Bajaj, Former Chairperson, Central Electricity Authority & Ex-Off. Secretary to Govt. of India [Mobile:
9810870808; Email id: [email protected]], as a Nominee Arbitrator for the respondent no.1. The two Arbitrators shall decide on the Presiding Arbitrator and proceed with the arbitration. All objections of the respondent no.1 shall also remain open in such arbitration proceeding.
12. The arbitrators shall give a disclosure in terms of Section 12 of the Act before proceeding with the reference.
13. The fee of the Arbitral Tribunal shall be governed by Schedule IV of the Act.
14. The petition is disposed of in the above terms.
NAVIN CHAWLA, J JANUARY 25, 2023/rv Signature Not Verified Digitally Signed By:SUNIL Signing Date:27.01.2023 19:53:19