Delhi High Court - Orders
Energy Efficiency Services Ltd vs M/S Karvy Data Management Services Ltd on 10 March, 2023
Author: Yashwant Varma
Bench: Yashwant Varma
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 6/2023
ENERGY EFFICIENCY SERVICES LTD ..... Petitioner
Through: Mr. Samdarshi Sanjay, Adv.
versus
M/S KARVY DATA MANAGEMENT SERVICES LTD
..... Respondent
Through: Appearance not given.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 10.03.2023 This matter has been taken up today as 09 March 2023 was declared a holiday.
1. This petition under Section 11 of the Arbitration and Conciliation Act, 1996 [the Act] has been preferred for constitution of an Arbitral Tribunal consequent to the respondents having failed to take further steps in accordance with the appointment procedure as contemplated under the Agreement. The dispute itself arises out of a Letter of Award which came to be issued by the Petitioner in favor of the Respondent for the supply of LED bulbs and data base preparation. The terms of the Award are set forth in the letter of 12 August 2015.
2. The General Conditions of Contract and more particularly Clause 17 thereof deals with the settlement of disputes procedure which was liable to be followed. The same reads as under: -
"17.0. Settlement of Disputes 17.1 Adjudicator 17.1.1 If any dispute of any kind whatsoever shall arise between the EESL and the Implementing Partner in connection with or Signature Not Verified arising out of the Contract, including without prejudice to the Digitally Signed By:NEHA Signing Date:16.03.2023 15:14:45 generality of the foregoing, any question regarding its existence, validity or termination, or the execution of the Facilities-whether during the progress of the Facilities or after their completion and whether before or after the termination, abandonment or breach of the Contract-the parties shall seek to resolve any such dispute or difference by mutual consultation. If the parties fail to resolve such a dispute or difference by mutual consultation, then the dispute shall be referred in writing by either party to the Adjudicator, with a copy to the other party.
17.1.2 The Adjudicator shall give its decision in writing to both parties within twenty-eight (28) days of a dispute being referred to it. If the Adjudicator has done so, and no notice of intention to commence arbitration has been given by either the EESL or the Implementing Partner within fifty-six (56) days of such reference, the decision shall become final and binding upon the EESL and the Implementing Partner. Any decision that has become final and binding shall be implemented by the parties forthwith. 17.1.3 Should the Adjudicator resign or die, or should the EESL and the Implementing Partner agree that the Adjudicator is not fulfilling its functions in accordance with the provisions of the Contract; another retired Judge of High Court/Supreme Court of India shall be jointly appointed by the EESL and the Implementing Partner as adjudicator under the Contract. Failing agreement between the two within twenty eight (28) days, the new retired judge of High Court/Supreme Court of India shall be appointed as the Adjudicator under the Contract at the request of either party by the Appointing Authority specified in the SCC. The adjudicator shall be paid fee plus reasonable expenditures incurred in the execution of its duties as adjudicator under the contract. This cost shall be divided equally between the EESL and the Implementing Partner.NIT/Bid Section-2 Page 28 of 33
Document No.: (ITB)
EESL/06/2015-16/
DELP-DIST./
0512034 Dated:
26-June-2015
17.2 Arbitration
17.2.1 If either the EESL or the Implementing Partner is dissatisfied with the Adjudicator's decision, or if the Adjudicator fails to give a decision within twenty-eight (28) days of a dispute being referred to it, then either the EESL or the Implementing Partner may, within fifty-six (56) days of such reference, give notice to the other party, with a copy for information to the Adjudicator, of its intention to commence arbitration, as hereinafter provided, as to the matter in dispute, and no arbitration in respect Signature Not Verified of this matter may be commenced unless such notice is given. Digitally Signed By:NEHA Signing Date:16.03.2023 15:14:45 17.2.2 Any dispute in respect of which a notice of intention to commence arbitration has been given, in accordance with Sub- Clause 17.2.1, shall be finally settled by arbitration. Arbitration may be commenced prior to or after completion of the Facilities. 17.2.3 Any dispute submitted by a party to arbitration shall be heard by an arbitration panel composed of three arbitrators, in accordance with the provisions set forth below. 17.2.4 The EESL and the Implementing Partner shall each appoint one arbitrator, and these two arbitrators shall jointly appoint a third arbitrator, who shall chair the arbitration panel. If the two arbitrators do not succeed in appointing a third arbitrator within twenty-eight (28) days after the latter of the two arbitrators has been appointed, the third arbitrator shall, at the request of either party, be appointed by the Appointing Authority for arbitrator designated in the SCC.
17.2.5 If one party fails to appoint its arbitrator within forty-two (42) days after the other party has named its arbitrator, the party which has named an arbitrator may request the Appointing Authority to appoint the second arbitrator.
17.2.6 If for any reason an arbitrator is unable to perform its function, the mandate of the Arbitrator shall terminate in accordance with the provisions of applicable laws as mentioned in ITB Clause 7 (Governing Law) and a substitute shall be appointed in the same manner as the original arbitrator. 17.2.7 Arbitration proceedings shall be conducted (i) in accordance with the rules of procedure designated in the SCC, (ii) in the place designated in the SCC, and (iii) in the language in which this Contract has been executed.
17.2.8 The decision of a majority of the arbitrators (or of the third arbitrator chairing the arbitration, if there is no such majority) shall be final and binding and shall be enforceable in any court of competent jurisdiction as decree of the court. The parties thereby waive any objections to or claims of immunity from such enforcement.
17.2.9 The arbitrator(s) shall give reasoned award. 17.3 Notwithstanding any reference to the Adjudicator or arbitration herein, the parties shall continue to perform their respective obligations under the Contract unless they otherwise agree the EESL shall pay the Implementing Partner any monies due to the Implementing Partner."
3. Consequent to disputes having arisen, the matter came to be referred to the Adjudicator to render his decision on 31 March 2022. Despite the communication of the said order to the Respondent in Signature Not Verified Digitally Signed By:NEHA Signing Date:16.03.2023 15:14:45 terms of the Letter of 05 April 2022, no deposits were made by them. It is only thereafter that the Petitioner, in terms of a notice of 19 May 2022 referable to Section 21 of the Act invoked arbitration. The Court in its earlier order has already noticed that despite due service, the Respondent had neither appeared nor had they filed any response. Even today when the matter was called, none has appeared on its behalf.
4. Learned counsel for the Petitioner submits that, although it had made its nomination and the Agreement contemplates three-member Tribunal, the ends of justice would warrant this Court invoking its powers conferred by Section 11 of the Act and constituting a sole arbitrator.
5. Accordingly, and for all the aforesaid reasons, the instant petition is allowed. The Court hereby appoints Mr. Justice Dinesh Kumar Singh [Official Address: I-110, 2nd Floor, Lajpat Nagar, Part - 1, New Delhi - 110024] [Mobile No. 9431015011] [email:
[email protected]] as the sole arbitrator for resolution of the disputes which have arisen.
6. The parties are directed to appear before the learned arbitrator, as and when notified. This is subject to the learned arbitrator making the necessary disclosure under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act.
7. The fees of the arbitrator shall be decided according to the Fourth Schedule of the Act.
YASHWANT VARMA, J.
MARCH 10, 2023 bh Signature Not Verified Digitally Signed By:NEHA Signing Date:16.03.2023 15:14:45