The main legal point established in the judgment is that a document can be insufficiently stamped, not unstamped, and the appointment of an arbitrator is necessary to avoid holding up arbitration proceedings at the inception.

JUDGMENT

a. K. Menon, J. - By this application, filed under Section 11 of the arbitration and Conciliation act, 1996, the applicant seeks appointment of a Sole arbitrator to adjudicate upon disputes between the applicant and the respondents under a Tripartite agreement dated 6th February 2013. The application is opposed by the 1st respondent-Carboline. The 2nd respondent-Octamec had not appeared at the initial stages. Later, it was learnt that the 2nd respondent is in liquidation and accordingly, the Official Liquidator of the 2nd respondent has been impleaded as respondent no.2.

2. at the outset, it is to be noted that the original Tripartite agreement dated 6th February 2013 is not presently available with any of the parties. When this matter was taken up for hearing, notice was issued to the Liquidator, calling upon the Liquidator to confirm whether he was in possession of the original agreement. The learned Company Prosecutor appearing on behalf of the Liquidator on 24th January 2022, on scrutiny of the record, has confirmed that the original agreement was not found in the records of the 2nd respondent-company.

3. as and way of background, the following facts are relevant.

3.1 The applicant is a partnership firm. The 1st and 2nd respondents were limited companies and it is seen from the record that pursuant to the tripartite agreement, the applicant was required to carry out certain work including construction and maintenance for Vodafone Shared Services Limited pursuant to a subcontractor agreement. The sub-contractor agreement is dated 18th September 2012 and that is between the respondents inter se. Essentially the work involved supply and application of intumescent paint fire protection system and anti-corrosive paint to steel columns, fire and rust protection systems for the Vodafore Data Centre. The respondent no.2 ('Octamec') is believed to have placed a work order and a purchase order on respondent no.1 ('Carboline') for the aforesaid supply and application. a purchase order came to be issued under the Subcontractor agreement on 8th October 2012.

3.2 The purchase order was placed by the 1st respondent on the applicant for supply of paint, as aforesaid. The total consideration was Rs.18,00,77,644=20. Payment was to be made by a Letter of Credit of 90 days. The applicant thereafter claims to have placed a purchase order with a company in Jordan for supply of the paint for an agreed consideration. The applicant is believed to have made payments to the said company in Jordan for supply of the paint. Several meetings were held between the parties to this application in the interregnum, but Carboline continued to default in making payments. Carboline apparently entered into negotiations with the applicant to revise payment terms and as a result of these negotiations, a New Purchase Order dated 26th December 2012 (NPO) came to be issued reflecting negotiated terms for supply of 3,32,597 ltrs. of paint for a consideration of Rs.19,19,13,125/-. The applicant has received a Letter of Credit only for Rs.3.14 crores from Octamec.

3.3 It is the applicant's case that pursuant to the earlier purchase order, it had ordered 21 full container loads of the paint from Jordan. The consignments began arriving at Nhava Sheva Port on or around 6th January 2013 and the applicant was incurring demurrage charges and port charges. Meanwhile, Carboline apparently, facing a financial crisis, did not make payments under the NPO. Carboline then suggested that Octamec would open the requisite Letters of Credit in favour of the applicant and that Octamec should accept a combination of advances payable by post-dated cheques as guarantee against the Sight Letters of Credits being issued to the applicant by Octamec. Discussions ensued between the parties and as a result, the tripartite agreement forming subject matter of the present application came to be executed on 6th February 2013. The applicant thereafter awaited payments, which were not forthcoming. I