Madras High Court
M/S.Kone Elevator India Private ... vs M/S.Amar Prakaash Developers Pvt Ltd on 22 June, 2023
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
Arb. O.P(Com.Div). No.179 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2023
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
Arb. O.P(Com.Div).No.179 of 2023
M/s.Kone Elevator India Private Limited (KEIPL),
Rep. by its Director – Corporate Affairs & Company Secretary,
Shri.C.V.S.Krishna Kumar,
Having Corporate Office at
Prestige Centre Court, 9th Floor, The Forum Vijaya Mall,
Plot No.183, NSK Salai, Arcot Road,
Vadapalani,
Chennai – 600 026
Tamil Nadu, India.
And
Branch Office at
No.136, Shyamala Towers,
East Wing, 5th Floor, Arcot Road,
Saligramam, Chennai – 600 093,
Tamil Nadu, India. ... Petitioner
Vs.
1.M/s.Amar Prakaash Developers Pvt Ltd.,
CIN: U70102TN2008PTC066406
Having Registered Office at
No.92, 1st Floor, Happiness Tower,
Thirumudivakkam Main Road,
Thirumudivakkam,
Chennai – 602 109
Rep. by its Directors
Email:[email protected].
[email protected]
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Arb. O.P(Com.Div). No.179 of 2023
Also at
No.42, Rajendra Prasad Road,
Nehru Nagar, Chrompet,
Chennai -600 044.
2.Aadarsh Surana (DIN: 02009868)
Director
M/s.Amar Prakaash Developers Pvt. Ltd.,
No.92, 1st Floor, Happiness Tower,
Thirumudivakkam Main Road, Thirumudivakkam,
Chennai – 602 109.
Email:[email protected]
3.Mohan Vijay Amirtharaj (DIN:09102296)
Director
M/s.Amar Prakaash Developers Pvt. Ltd.,
No.92, 1st Floor, Happiness Tower,
Thirumudivakkam Main Road, Thirumudivakkam,
Chennai – 602 109. ... Respondents
PRAYER : Original Petition is filed under Section 11(6)(a) & (c) of the
Arbitration and Conciliation Act, 1996, r/w Rule 2 of Appointment of
Arbitrators of Madras High Court Scheme, 1996, praying to appoint Sole
Arbitrator in line with Arbitration Clause provided in the Dispute Resolution
Provision in the DSEITC Agreement for Design, Supply, Erection, Installation,
Testing and Commissioning of Elevators dated 28.03.2018.
For Petitioner : Mr.Raathai S.Yadav
For Respondents : No Appearance
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Arb. O.P(Com.Div). No.179 of 2023
ORDER
This petition has been filed under Section 11(6) of Arbitration and Conciliation Act, 1996, (hereinafter referred as “the Act”), seeking to appoint Sole Arbitrator in line with Arbitration Clause provided in the Dispute Resolution Provision in the DSEITC Agreement for Design, Supply, Erection, Installation, Testing and Commissioning of Elevators dated 28.03.2018
2.Learned counsel appearing for the petitioner would submit that the petitioner and the 1st respondent entered into a DSEITC Agreement dated 28.03.2018 for Design, Supply, Erection, Installation, Testing and Commissioning of 2 numbers of Elevators in the project of “Palm Riviera – Club House Project”. The 1st respondent had made a payment of Rs.16,13,000/- towards the total amount of Rs.18,08,000/- till material delivery for the 2 elevators as claimed in invoices raised from 02.04.2018 till 11.06.2018. The balance work in respect of 2 elevators, where materials had already been made available for installation, can be resumed only on receipt of amounts as per the agreed payment terms. The petitioner has not received any payment towards the balance payable in respect 2 elevators for the process till material delivery, which is a sum of Rs.9,04,000/- Therefore, the petitioner was constrained to https://www.mhc.tn.gov.in/judis 3/8 Arb. O.P(Com.Div). No.179 of 2023 issue a demand legal notice dated 26.03.2022 to the 1st respondent demanding the unpaid Principal Outstanding process till material delivery for 2 elevators for Rs.9,04,000/- along with interest at the rate of 18%. Thereafter, several meetings were held between the petitioner and the 1st respondent regarding the payment of outstanding amount. However, the 1st respondent has never settled the dues. So far the total outstanding payable by the 1st respondent is a sum of Rs.70,00,526/- under various projects, including “Palm Riviera Club House” project, towards services rendered under the respective DSEITC Agreements. The petitioner has also issued notice dated 27.07.2022 through email seeking concurrence for appointment of the Sole Arbitrator. The said notice was delivered to the available email ID of the respondents. But there was no response from the respondents. Hence, the present application has been filed seeking for appointment of Sole Arbitrator in terms of Arbitration Clause provided at page No.6 of the DSEITC Agreement dated 28.03.2018.
3.Though notice served and the name of the respondents are printed in the cause lists, none appeared on behalf of the respondents, which shows that the respondents are not interested to prosecute the case. https://www.mhc.tn.gov.in/judis 4/8 Arb. O.P(Com.Div). No.179 of 2023
4.For better appreciation, Arbitration Clause provided at page No.6 of the DSEITC Agreement dated 21.06.2013, is extracted hereunder:
“Dispute Resolution Arbitration In the event of difference or dispute arising out or in connection with this agreement, over the rights or obligation of parties, the dispute would first be attempted to be resolved by consultations between the parties. Upon failure of such mutual consultations, the dispute or difference would be referred to Arbitration of a Sole Arbitrator, to be appointed by KONE and the provisions of the Arbitration and Conciliation Act, 1996 shall be applicable to such Arbitration.
For the purpose of jurisdiction, the Courts in the City of Chennai shall have jurisdiction in relation to Arbitration and any other remedy under this agreement.”
5.Considering the submissions made by the learned counsel appearing for the petitioner and in view of the fact that the present dispute is arising out of the DSEITC Agreement dated 28.03.2018 and the same is arbitrable under https://www.mhc.tn.gov.in/judis 5/8 Arb. O.P(Com.Div). No.179 of 2023 Arbitration Clause provided at page No.6 of the said agreement, this Court is inclined to appoint a sole Arbitrator.
i)Accordingly, Mr.T.Sai Krishnan, Advocate, Office at No.48/148, Second Floor, Vanguard House, Moore Street, Chennai – 600 001, (Contact No.9840229542) is appointed as the Arbitrator to enter upon reference and adjudicate the disputes inter se the parties.
ii) The learned Arbitrator appointed herein, shall after issuing notice to the parties and upon hearing them, pass an award as expeditiously as possible, preferably within a period of six months from the date of receipt of the Order without influencing any of the observations made by this Court in this order.
iii) Learned Arbitrator is requested to conduct arbitration proceedings in accordance with the Madras High Court Arbitration Proceedings Rules, 2017 and the fee of the learned Arbitrator shall be fixed in accordance with Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrator's Fees), Rules 2017.
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iv) In the event of non-appearance of the respondents/petitioner herein, the petitioner/respondents herein shall bear the entire remuneration and other expenses and thereafter, the petitioner/respondents can recover the same directly from the respondents/petitioner herein.
6.This Original Petition is ordered accordingly, leaving the parties to bear their own costs. Since this Court has appointed an Arbitrator, it is open to the petitioner as well as the respondents to seek other reliefs under the provisions of Arbitration and Conciliation Act 1996 before the Arbitrator. Connected, Original Application is also disposed of.
22.06.2023 rst KRISHNAN RAMASAMY. J., https://www.mhc.tn.gov.in/judis 7/8 Arb. O.P(Com.Div). No.179 of 2023 rst Arb.O.P.(Comm.Div).No.179 of 2023 22.06.2023 https://www.mhc.tn.gov.in/judis 8/8