Delhi High Court - Orders
Fibox India Private Ltd vs Solaris Power Private Ltd. & Ors on 10 October, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 757/2021
FIBOX INDIA PRIVATE LTD. ..... Petitioner
Through: Mr. Tuhin, Advocate.
versus
SOLARIS POWER PRIVATE LTD. & ORS. ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 10.10.2022
1. Petition under Section 11(5) of the Arbitration and Conciliation Act, 1966 has been filed on behalf of the petitioner for appointment of an Arbitrator.
2. It is submitted in the petition that the petitioner was supplying its enclosures and its accessories to the respondent no. 1 Company since the year 2016-2017. On account of on-going business relations with the respondent no. 1, irrespective of the advance payment not received by the respondent no. 1, the petitioner continued to supply its products on regular basis. 60 days interest free credit period was granted by the petitioner from the date of issuance of each invoice.
3. Since the business transactions were inter-state, the petitioner till the implementation of the Goods and Services Tax required the respondent no. 1 to issue the Form C against each Invoice, under the Central Sales Tax Rules, 2015, for the purpose of claiming the tax refund. However, the respondent no. 1 has made several defaults in issuance of Form C because of which the petitioner has not been able to claim a refund. The total amount for the year 2016-2017 is Rs. 83,130/- . Moreover, the respondent no. 1 has not made payments aggregating to Rs. 10,68,210/- against previous Invoices for more than 120 days. Aside from this, another Invoice dated 29.08.2019 amounting to Rs.3,48,454/- is pending for payment.
4. The respondent vide its e-mail dated 11.09.2018 acknowledged the outstanding payments and assured that it would pay Rs. 5,00,000/- within one week and the remaining amount would be cleared by the end of the September, 2018. Further purchase Orders dated 30.08.2018 was received against which the goods were supplied.
5. The petitioner received a sum of Rs. 10,60,000/- from the respondent no. 1 and two tranches of Rs. 5,00,000/- and Rs. 5,60,000/- in September, 2019. Thereafter, further purchase Orders have been issued against which the goods have supplied. There have been outstanding payments against the invoices as well as on account of Central Sales Tax/GST. The outstanding amount as on date was Rs. 42,84,439.28/-.
6. Despite exchange of e-mail, no amount has been paid on behalf of the respondent no. 1. The petitioner thus, sent a legal Notice dated 17.10.2019 to the respondent demanding the outstanding amount. The petitioner sent another Notice dated 19.02.2020under the Insolvency and Bankruptcy Code, 2016 demanding an amount of Rs. 52,42,456/-.
7. The respondent vide its e-mail dated 19.02.2020 expressed its financial difficulties and submitted that it was not possible for it to clear its dues.
8. The Purchase Order containes Arbitration Clause for referral of disputes to Arbitration. The Notice of invocation of Arbitration dated 01.02.2021 was sent invoking arbitration and proposing the name of Shri. Pranay Sarkar, Advocate to be appointed as the sole Arbitrator for adjudication of the disputes. The respondent failed to respondent within 30 days. Hence, the prayer is made that an Arbitrator may be appointed for adjudication of the disputes.
9. The respondent nos. 1 to 3 duly served but non appeared despite due service.
10. Submissions heard.
11. The petitioner has given details of the arbitrable disputes that have arisen between the parties. There is also a valid written Arbitration Agreement between the parties as is contained in the Purchase Order.
12. In light of the facts and submissions made, Ms. Aruna Tikku, Advocate (Mobile No. 9810104685) is hereby appointed as the independent Arbitrator to adjudicate the disputes between the parties.
13. The parties are at liberty to raise their respective objections before the Arbitrator.
14. The fees of the learned Arbitrator would be fixed in accordance with the IV Schedule to A&C Act, 1996 or as consented by the parties.
15. This is subject to the Arbitrator making necessary disclosure as under
Section 12(1) of A&C Act, 1996 and not being ineligible under Section 12(5) of the A&C Act, 1996.
16. Learned counsels for the parties are directed to contact the learned Arbitrator within one week of being communicated a copy of this Order to them by the Registry of this Court.
17. The petition is accordingly disposed of in the above terms.
NEENA BANSAL KRISHNA, J OCTOBER 10, 2022/PA