Karnataka High Court
M/S Nakoda Dairy Pvt Ltd vs M/S Ssp Pvt Ltd on 19 January, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:2559
CMP No. 351 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CIVIL MISC. PETITION NO. 351 OF 2018
BETWEEN:
M/S NAKODA DAIRY PVT LTD
HAVING ITS CORPORATE AND
REGISTERED OFFICE
AT NO.11/1, KR ROAD,
NEXT TO BASAVANAGUDI POST OFFICE
BENGALURU-04
REPRESETNED BY THE DIRECTOR
MR NAVARATHAN DILIP KUMAR.
...PETITIONER
(BY SRI. RAJAGOPALA NAIDU, ADVOCATE)
AND:
1. M/S SSP PVT LTD
REGISTERED AND CORPORATE OFFICE
13 MILESTONE MATHURA ROAD,
Digitally
signed by FARIDABAD-121003, HARYANA.
ANAND N
Location:
HIGH 2. M/S SSP PVT LTD
COURT OF
KARNATAKA B-109 MIDC BUTIBARI
NAGPUR-441122 MAHARASHTRA
REPRESENTED BY ITS
MANAGING DIRECTOR.
...RESPONDENTS
(BY SRI.N. KRISHNA., ADVOCATE FOR R1;
R2 IS SERVED AND UNREPRESENTED )
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NC: 2024:KHC:2559
CMP No. 351 of 2018
THIS CIVIL MISC. PETITION IS FILED UNDER
SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT
1996, PRAYING TO EXERCISE THE POWER UNDER
SECTION 11(6) OF THE ARBITRATOR AND CONCILIATION
ACT 1996 AND APPOINT AN ARBITRATOR TO ADJUDICATE
THE DISPUTES THAT HAVE ARISEN BETWEEN THE
PETITIONER AND THE RESPONDENTS; AS PER
ANNEXURE-B, CLAUSE-8 DATED10/11/2015.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition under Section 11 of the Arbitration and Conciliation Act, 1996, has been filed by the petitioner against the respondents seeking appointment of an Arbitrator in terms of the Arbitration Agreement contained at Clause No.8 of the Price Schedule, Terms and Conditions dated 10.11.2015 entered into between the parties.
2. Clause No.8 of the Price Schedule, Terms and Conditions dated 10.11.2015, which is an Arbitration clause reads as under:-
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NC: 2024:KHC:2559 CMP No. 351 of 2018 "In the event of any dispute or difference of opinion between the parties hereto arising out of or in connection with the contract or with regard to performance of any obligation hereunder by either party, the parties hereto shall use their best efforts to settle such dispute or difference of opinion amicably by mutual negotiations.
Should agreement not be reached, either party may forthwith give to the other, notice in writing of the existence of such question, dispute or difference and the same shall be referred for adjudication to the Arbitrator. The decision of the arbitrator shall be final and binding on the parties and the provisions of the Indian Arbitration Act, 1996, and of the Rules there under, any statutory modifications thereto at the time being in force shall be deemed to be applicable to and be incorporated in the Contract. The venue of all such arbitration shall be Bengaluru, Karnataka State.
Purchaser or Supplier shall not transfer, assign or sublet this contract or any part of it or any rights thereof, share obligations or liabilities or interest therein without the prior written consent of the other. It is mutually understood and agreed that Purchaser's obligations shall be solely with Supplier and that Purchaser shall in no way be responsible for any liabilities arising out of Supplier's contractual relations or arrangement with sub-contractors, vendors, and / or -4- NC: 2024:KHC:2559 CMP No. 351 of 2018 Indian or foreign subsidiaries, unless otherwise mutually agreed upon in writing".
3. The material on record discloses that since disputes arose between the parties in relation to the aforesaid Agreement containing the aforesaid arbitration agreement/Clause, the petitioner invoked the aforesaid arbitration clause and issued a notice dated 03.06.2017 to the respondents putting forth various claims and contentions and nominating and appointing a sole arbitrator and calling upon the respondents to give their concurrence/consent to refer the dispute to arbitration.
4. Though the respondents sent reply dated 04.07.2018 denying the claim of the petitioner, the respondents have not disputed/denied the existence of arbitration agreement/clause in the contracts entered into between the parties. Subsequently, the parties have not only failed to resolve their disputes but they have also not reached any consensus / agreement for appointment of an arbitrator and as such, petitioner is before this Court by way of the present petition. Even in the present petition, while -5- NC: 2024:KHC:2559 CMP No. 351 of 2018 the respondents have been served and have remained unrepresented and have not contested the petition and accordingly do not dispute or deny the existence of arbitration agreement / clause in the contracts entered into between the parties.
5. In view of the aforesaid facts and circumstances, though several contentions have been urged by both sides in support of their respective claims, having regard to the undisputed fact that there exists an arbitration agreement / clause in the contracts entered into between the parties, without expressing any opinion on the merits / demerits of the rival contentions, I deem it just and appropriate to allow this petition by referring the dispute between the parties to arbitration with the consent of both sides by appointing Hon'ble Sri Justice Sri V Jagannathan, a former Judge of this Court, to act as the sole Arbitrator to resolve the dispute between the parties under the provisions of the Arbitration and Conciliation Act, 1996, as per the Rules governing the Arbitration and -6- NC: 2024:KHC:2559 CMP No. 351 of 2018 Conciliation Centre (Domestic & International) at Bengaluru.
6. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) Hon'ble Sri Justice Sri V Jagannathan, a former Judge of this Court, is hereby appointed as the sole Arbitrator to resolve the dispute between the parties as per the Rules governing the Arbitration and Conciliation Centre (Domestic & International) at Bengaluru.
(iii) All rival claims, contentions, etc., of both parties including contentions relating to maintainability, arbitrability, jurisdiction, limitation, stamp duty, etc., are left/kept open to be decided by the Arbitral Tribunal and no opinion is expressed on the same.-7-
NC: 2024:KHC:2559 CMP No. 351 of 2018
(iv) A copy of this order be sent forthwith to the Arbitration and Conciliation Centre (Domestic & International), Khanija Bhavan, Bengaluru, for proceeding further and also to Hon'ble Sri Justice Sri V Jagannathan, a former Judge of this Court, to the address available with the said Centre.
(v) Registry is directed to return all original documents produced by any of the parties after obtaining Photostat copies of the same.
Sd/-
JUDGE AN/-