Bombay High Court
Ntt Data Business Solutions India Pvt. ... vs Tata Communications Transformation ... on 1 September, 2021
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
21.carap.144.21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANJALI Digitally signed by
ANJALI TUSHAR
ORDINARY ORIGINAL CIVIL JURISDICTION
TUSHAR ASWALE
Date: 2021.09.03
ASWALE 17:33:47 +0530
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION APPLICATION NO. 144 OF 2021
NTT DATA Business Solutions
India Pvt Ltd ..Petitioner/Applicant
Vs.
Tata Communications Transformation
Services Ltd ..Respondent
Mr.Shrey Fatterpekar a/w Mr. Danesh Mehta i/b M Mulla Associates,
for the Petitioner/Applicant.
Ms. Dhruti Chheda i/b Iudus Law, for the Respondent.
CORAM:- B. P. COLABAWALLA,J.
DATE :- SEPTEMBER 1, 2021.
P. C.:
The Applicant has filed the present Application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 ("Arbitration Act") for appointment of a Sole Arbitrator to adjudicate upon the disputes that have arisen between the Applicant and Respondent.
2 The brief facts in the matter are as follows:
The parties agreed to a scope of work dated 4th October, Aswale 1/5
21.carap.144.21.doc 2016 and thereafter they executed a Short Form Procurement Agreement dated 28th November, 2016 ("said Agreement") inter alia to create and deliver SAP software modules on the terms and conditions, more particularly set out therein. Clause 21.2 of the said Agreement contains the arbitration clause between the parties. Clause 21.2 inter alia provides that for adjudication of disputes between the parties, a sole arbitrator was required to be appointed as per the UNCITRAL Arbitration Rules.
3 During the subsistence of the said Agreement, disputes arose between the parties, as more particularly set out in the present Application. The parties thereafter attempted to amicably resolve their disputes but failed to arrive at such amicable resolution of disputes. Accordingly, the Applicant invoked arbitration by its Advocates' email dated 29th April, 2020 addressed to the Respondent's advocates and proposed three individuals who could be appointed as a sole arbitrator. The Respondent by its Advocates' letter dated 26 th May 2020 inter alia did not agree with the Petitioner's suggestion and suggested two other individuals who could be appointed as a sole arbitrator, which were not acceptable to the Applicant. In these circumstances, the Applicant filed the Commercial Arbitration Application No. 7 of 2021 under section 11(6) of the Arbitration Act before this Hon'ble Court inter alia praying Aswale 2/5
21.carap.144.21.doc for the appointment of a sole arbitrator in the matter. 4 When Commercial Arbitration Application No. 7 of 2021 came up for hearing on 12th March, 2021, this Hon'ble Court was pleased to pass an order dated 12th March, 2021 inter alia stating that the Applicant must follow the due procedure for appointing the appointing authority as per the UNCITRAL Arbitration Rules as set out in the arbitration clause in the Agreement between the parties. Accordingly, Commercial Arbitration Application No. 7 of 2021 was dismissed as withdrawn.
5 The UNCITRAL Arbitration Rules provide that in the event the parties fail to agree for appointment of a sole arbitrator, they shall agree upon an appointing authority which shall then appoint a sole arbitrator to adjudicate upon disputes between the parties. Accordingly, the Applicant through its Advocates' letter dated 30th March, 2021 inter alia proposed two appointing authorities in the present matter for appointment of a sole arbitrator and sought the Respondent's confirmation with respect to the same.
6 Discussions were held between the parties and thereafter, both parties mutually agreed to designate this Hon'ble Court as the Aswale 3/5
21.carap.144.21.doc appointing authority in the matter under Article 6 of the UNCITRAL Arbitration Rules for the purpose of appointing a sole arbitrator, which was recorded in a letter dated 1st May, 2021, addressed by the Respondent's Advocates to the Applicant's Advocates. 7 Therefore, the parties having now agreed to designate this Court as the appointing authority under the UNCITRAL Rules, the Applicant has filed the present Application. 8 Considering that the parties have now agreed to designate this Court as the appointing authority under the UNCITRAL Rules, the following order is passed:-
(a) Mr. Assem Naphade, an advocate of this Court, is hereby appointed to act as a Sole Arbitrator to decide upon the disputes and differences between the Applicant and the Respondent arising out of and/or in connection with and/or in relation to the Agreement dated 28th November, 2016.
(b) A copy of this order will be communicated to the learned Sole Arbitrator by the advocates for the Applicant within a period of one week from today.
(c) The learned Sole Arbitrator is requested to forward his Statement of Disclosure under Section 11 (8) read with Section 12 (1) of the Arbitration Act to the advocates for the Applicant so as to enable them to file the same in the Registry of this Court. The Registry of this Court shall retain the said Statement on the file of this application and a copy of the same shall be furnished by the advocates for Aswale 4/5
21.carap.144.21.doc the Applicant to the advocates for the Respondent.
(d) The parties shall appear before the learned Sole Arbitrator on such date and at such place as he nominates to obtain appropriate directions in regard to fixing a schedule for completing pleadings etc. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed.
(e) Contact and communication particulars shall be provided by both sides to the learned Sole Arbitrator within a period of one week from today. This information shall include a valid and functional email address as well as mobile numbers of the respective advocates.
(f) The parties immediately consent to a further extension of six months to complete the arbitration should the learned Sole Arbitrator find it necessary.
(g) The parties have agreed that the venue and seat of the arbitration will be in Mumbai.
9 The Arbitration Application is accordingly disposed of. However, there shall be no order as to costs.
10 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. ) Aswale 5/5