M/S Offshore Infrastructure Ltd vs Mangalore Refinery & Petrochemicals ... on 25 January, 2017

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Karnataka High Court

M/S Offshore Infrastructure Ltd vs Mangalore Refinery & Petrochemicals ... on 25 January, 2017

Bench: Ashok B. Hinchigeri

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF JANUARY 2017

                           BEFORE

       THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI

                  C.M.P.NO.183 OF 2016

BETWEEN

M/S.OFFSHORE INFRASTRUCTURE LTD.
22, UDYOG KSHETRA
MULUND LINK ROAD, MULUND (W)
MUMBAI 400 080.
BEING REPRESENTED BY ITS
AUTHORIZED SIGNATORY
MR.PROVASH C.TRIPATHY.                             ... PETITIONER

             (BY:SRI GOUTHAM BHARADWAJ, ADVOCATE)

AND:

MANGALORE REFINERY & PETROCHEMICALS LTD.
HAVING ITS REGISTERED OFFICE
AT KUTHERTHOOR P.O., VIA KATIPALLA
MANGALORE 575 030.
AND ALSO HAVING OFFICE AT
PLOT A-1, OPP. KSSIDC A.O.BUILDING
INDUSTRIAL ESTATE, RAJAJINAGAR
BANGALORE 560 010, KARNATAKA
BEING REPRESENTED BY ITS
AUTHORIZED SIGNATORY                     ... RESPONDENT

               (notice served and unrepresented)

      THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER
SECTION 11(6) OF THE ARBITRATION AND CONCILIATION ACT,
1996, PRAYING TO THIS HON'BLE COURT MAY BE PLEASED TO (A)
APPOINT A PRESIDING ARBITRATOR TO RESOLVE THE EXISTING
DISPUTE BETWEEN THE PARTIES (B) AWARD COSTS AND (C)
GRANT SUCH OTHER RELIEF TO MEET THE ENDS OF JUSTICE AND
EQUITY.

     THIS C.M.P. COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
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                                    ORDER

This petition is filed seeking the appointment of the Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.

2. The parties herein have entered into the contract agreement, dated 3.6.2010 (Annexure-B) for the design, detail engineering, supply, fabrication/construction, installation and painting of "Intermediate Product Storage Tanks Package (PART-A). The dispute that has arisen is regarding the final bills, price escalation, reimbursement of service tax bills, claims for compensation for site overstay, etc. The said agreement provides for the dispute resolution through arbitration mechanism. Clauses 9.0.2.0 (a)(i, ii and

vii) of the said agreement reads as follows:-

"9.0.2.0 Two Arbitrators And An Umpire

a) For Global tenders and Indigenous Contracts above Rs.1 (one) Crore, the following Arbitration clause will be applicable.

(i) Except as otherwise provides elsewhere in the contract if any dispute, difference, question or disagreement arises between the parties hereto or their respective representatives or assignees, at any time in connection with construction, meaning, operation, effect, interpretation or out of the contract or breach thereof the same shall be decided by an Arbitral Tribunal consisting of three Arbitrators. Each 3 party shall appoint one Arbitrator and the Arbitrators so appointed shall appoint the third Arbitrator who will act as Presiding Arbitrator.

             (ii)     In case a party fails to appoint an
      arbitrator     within 30 days from the receipt of the

request to do so by the other party or the two Arbitrators so appointed fail to agree on the appointment of third Arbitrator within 30 days from the date of their appointment, upon request of a party, the Chief Justice of India or any person or institution designated by him (in case or International Commercial Arbitration) shall appoint the Arbitrators/Presiding Arbitrator. In case of domestic contracts, the Chief Justice of India of the High Court or any person or institution designated by him within whose jurisdiction the subject purchase order/contract has been placed/made, shall appoint the arbitrator/Presiding Arbitrator upon request of one of the parties.

(vii) The venue of the arbitration shall be the place from where the purchase order/contract has been placed/made."

3. In keeping with the afore-extracted clauses, the petitioner appointed Sri M.M.Kamath as its nominee arbitrator, as is evident from its letter, dated 22.3.2016 (Annexure-F). It called upon the respondent to appoint its nominee arbitrator. The respondent, vide its letter, dated 25.4.2016 (Annexure-G) informed the petitioner that it has appointed Sri Justice S.Venkataraman, a retired Judge of this 4 Court as its nominee arbitrator to the Arbitral Tribunal. Sri Justice S.Venkataraman proposed the name of Sri Justice Shivaraj V. Patil, a retired Judge of the Hon'ble Supreme Court of India. The petitioner proposed the panel of three technical persons - Capt. John Prasad Menezes, Sri V.Murahari Reddy and Sri G.L.Rao. However, Sri Justice S.Venkataraman sent the response that it would be preferable to have a former Judge of the Supreme Court of India as the presiding arbitrator.

4. Heard Sri Gautham Bharadwaj, the learned counsel for the petitioner.

5. The respondent has remained unrepresented, though served with the notice. The case was adjourned a couple of times to enable the respondent's side to make arrangements for its representation.

6. On hearing the learned counsel for the petitioner, I allow this petition. I appoint Sri Justice V.Gopala Gowda, a retired Judge of the Hon'ble Supreme Court of India as the presiding arbitrator. He alongwith the two aforesaid arbitrators are requested to enter upon the arbitration, arbitrate the dispute and conduct the arbitration proceedings. 5

7. Registry is directed to endorse the copies of this order to Sri Justice V.Gopala Gowda and to the respondent.

Sd/-

JUDGE VGR

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