IMPORTANT POINT
If a contract provides for arbitration and disputes arise, arbitration is the only way to determine the dispute.

ORDER :

T.S. Thakur, CJI.

1. In this petition under Section 11(5) read with Section 11(12) of the Arbitration and Conciliation Act, 1996, the petitioner prays for the appointment of a sole arbitrator for adjudication of disputes that have arisen between the parties in relation to a “Service Provider Agreement” executed between them. The facts in brief are as under:

2. The petitioner-company is registered under the Laws of Panama with its Registered Office at Microjacket-359003, Roll 64778, Frame 53, Panama and a representative office at C-204, LGF, Greater Kailash-I, New Delhi-110048. The company, it appears, is engaged in providing liaison services to companies in public as well as in private sector within and outside the country including procurement of contracts from Government agencies for its clients and providing facilitation of pre and post contractual obligations and activities agreed upon by the parties. The company claims a small percentage of the value of the contract towards its fee for the Agency services rendered to its clients.

3. The petitioner’s case is that M/s. Mass Global Investment Company incorporated under the Iraqi Law and engaged in power production for Kurdistan Regional Government is one of its clients. Its further case is that in January-February 2006, the petitioner introduced respondent-Bharat Heavy Electricals Limited, a public sector undertaking engaged in integrated power equipment plant manufacturing to the said M/s Mass Global Investment company in connection with a “Turnkey Supply of Arbeel Power Plant” in the State of Kurdistan. A contract was, according to the petitioner, signed between M/s Mass Global Investment Company (“the MGIC” for short) and the respondent on 6th May, 2006. The petitioner claims that the respondent had agreed to pay 1.1% of the contract value as agency fee for the services rendered by the petitioner in connection with the said Arbeel project for the respondent. The project could not, however, materialize for no fault of the petitioner. That did not deter the petitioner from using its good offices to procure another project by the name “Sulaymaniah Gas Power Project”. A Memorandum of Agreement was signed between the petitioner’s client and the respondent-Corporation on 20th January, 2007 for execution of the said project which was followed by signing of a Turnkey contract on 4th March, 2007. The original contract value of the project aforementioned was US $ 117,000,000 which was later increased to US $ 118,181,750. The petitioner asserts that as in the case of Arbeel project, the respondent had agreed to pay 1.1% of the contract value towards agency fee to the petitioner without the requirement of providing any further service.

4. The petitioner asserts that work of the execution of the project aforementioned started and was undertaken with the participation of the petitioner, in the course of which the petitioner claims to have rendered various services to the respondent for facilitating execution of the project including logistic support at Amman/Jordon. The petitioner submits that the Service Provider Agreement in respect of Sulaymaniah Gas Power Project was executed between the petitioner, on the one hand, and the respondent, on the other, on 11th May, 2010 providing for pre-contractual and post-contractual activities and for payment of a fee equivalent to 1.1% of the total contractual value within thirty days from the receipt of the payment of the respondent-BHEL. The petitioner alleges that progressive payments were received by the respondent from the company but no payment towards agency fee was realized in favour of the petitioner. After several reminders and persuasion, the respondent-BHEL is said to have disbursed a sum of US $ 3,60,282 only to the petitioner on 22nd June, 2010 for the services so rendered. The petitioner claims the balance sum of US $ 9,39,718 towards agency fee after adjustment of the amount of US $ 3,60,282 towards the payment already received