Karnataka High Court
Mphasis Limited vs Prostar Micronova Power Systems Pvt. ... on 7 December, 2018
Equivalent citations: AIRONLINE 2018 KAR 2236
Author: Chief Justice
Bench: Dinesh Maheshwari
C.M.P.No.190/2018
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF DECEMBER, 2018
BEFORE
HON'BLE MR.JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE
CIVIL MISCELLANEOUS PETITION NO.190 OF 2018
BETWEEN:
MPHASIS LIMITED
A COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
BAGMANE WORLD TECHNOLOGY CENTER
MARATHALLI RING ROAD
DODANAKHUNDI VILLAGE
MAHADEVAPURA
BENGALURU - 560 048
REPRESENTED BY VICE PRESIDENT
LEGAL AND AUTHORIZED SIGNATORY
HEMANTH ANANTH RAM
... PETITIONER
(BY SRI MANU K., ADVOCATE FOR
SRI AJAY J. NANDALIKE, ADVOCATE)
AND:
PROSTAR MICRONOVA POWER SYSTEMS PVT. LTD.
A COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
S.NO.321, PATIL NAGAR
BAWDHAN BUDRUK, PUNE - 411 021.
... RESPONDENT
(BY SRI K. VENKAT SATHYANARAYANA, ADVOCATE)
---
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SECTION 11(5) OF THE ARBITRATION AND
C.M.P.No.190/2018
-2-
CONCILIATION ACT, 1996 PRAYING TO APPOINT AN
ARBITRATOR WHO SHALL BE THE SOLE ARBITRATOR AND
REFER THE DISPUTES TO THE ARBITRAL TRIBUNAL
COMPRISING OF THE SOLE ARBITRATOR AS PER
ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT, MADE THE FOLLOWING:
ORDER
By way of this application under Section 11 of the Arbitration and Conciliation Act, 1996 ('the Act of 1996'), the petitioner has made the request for appointment of Arbitrator to adjudicate upon and decide all its disputes with the respondent, arising out of, and relating to, the Service Agreement dated 07.03.2014 (Annexure-A).
The petitioner submits that it is engaged in the business of information technology and information technology enabled services and the respondent is engaged in the business of manufacturing, maintaining and providing solutions in uninterrupted power supply systems and related equipments. The petitioner submits it had entered into the aforesaid agreement with the respondent, whereby the respondent had agreed to supply Uninterrupted Power Supply Systems (UPS) in certain geographical clusters to the petitioner as per the terms and conditions contained in the agreement and by way C.M.P.No.190/2018 -3- of the Memorandum of Understanding dated 01.04.2015, the respondent agreed to provide maintenance services pertaining to Second Level Management (SLM) services of the UPS supplied by the respondent for the ATMs installed by the petitioner.
The petitioner submits that the respondent having failed to provide the services as agreed under the contract, it got issued a notice of termination dated 12.04.2017 and made a claim for recovery of the damages. It is further submitted that the respondent replied to the said notice and expressed its desire to be associated with the petitioner and to provide services in a timely manner as contained in the agreement. The petitioner submits that the respondent having failed to rectify the breach of the terms, it was constrained to issue legal notice dated 28.11.2017 invoking arbitration clause. It is pointed out that the respondent replied to the said notice but did not agree to the appointment of the arbitrator proposed by the petitioner.
The petitioner contends that the respondent having failed to nominate the Arbitrator as per the agreement, this C.M.P.No.190/2018 -4- Court may appoint an independent Arbitrator to adjudicate upon the dispute between the parties.
Learned counsel for the respondent also frankly submits that disputes do exist between the parties and hence, a Sole Arbitrator be appointed to resolve such disputes.
Heard the learned counsel appearing for the parties and examined the record.
The limited aspect required to be considered in this application is as to whether there exists an arbitration agreement between the parties?
In fact, the existence of an arbitration agreement in this matter is apparent on the face of the record. The arbitration clause, being Clause 12.4 in the Service Agreement, reads as under:
"12.4. DISPUTE RESOLUTION AND GOVERNING LAW a. Any dispute, difference, controversy or claim between the Parties (each a "Disputing Party"
and together the "Disputing Parties") arising out of or relating to this Agreement or the breach, termination or validity thereof ("Dispute") shall, upon the written request ("Request") of any Disputing Party duly served be referred to the C.M.P.No.190/2018 -5- authorized representative of the Disputing Parties for resolution. The authorized representatives shall promptly meet and attempt to negotiate in good faith a resolution of the Dispute.
b. If the representatives are not able to resolve the disputes within thirty (30) days after the dispute is referred to them, all such disputes will be settled by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996 or any statutory modification or enactment thereof. c. This Agreement shall be governed by laws of India and courts at Bangalore shall have exclusive jurisdiction pertaining to this Agreement. The proceedings of the Arbitration shall be conducted in English language and place of hearing shall be Bangalore."
From the material placed on record, it is evident that the petitioner issued notice proposing for appointment of Arbitrator, but the respondent did not take steps for appointment of Arbitrator as required by the aforesaid arbitration agreement between the parties.
When the parties stand at conflict and the disputes do exist, which have not been resolved; and for the reason of failure of the procedure for appointment of Arbitrator, it is just and proper that an independent arbitrator be appointed to C.M.P.No.190/2018 -6- adjudicate upon and decide the disputes between the parties, including their claims, counter claims and objections.
Now, learned counsel for the parties have fairly agreed to the appointment of a Former Judge of this Court, namely, Hon'ble Shri Justice H.N. Nagamohan Das, to act as an Arbitrator to resolve the disputes between the parties under the provisions of the Act of 1996, as per the Rules governing the Arbitration Centre at Bengaluru.
Accordingly, this petition is disposed of by appointing Hon'ble Shri Justice H.N. Nagamohan Das, a Former Judge of this Court, to enter into the reference and to act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing the said Arbitration Centre.
In the interest of justice, it is made clear that the Arbitrator shall adjudicate upon and decide all the disputes between the parties including their claims, counter-claims and objections relating to the agreement in question. The requirements of the Arbitration and Conciliation Act, 1996, [as amended by the Arbitration and Conciliation (Amendment) Act, 2015], shall be complied with by all the concerned. C.M.P.No.190/2018 -7-
Needless to observe that all the questions arising between the parties in this matter shall remain open for determination in the arbitration proceedings.
A copy of this order be sent to the Arbitration Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter on administrative side and also to Hon'ble Shri Justice H.N. Nagamohan Das, on the address available with the said Arbitration Centre, Bengaluru.
Sd/-
CHIEF JUSTICE ca