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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sachin Datta, J.
M/s Wave Geo-services Pvt. Ltd. – Appellant
Versus
M/s Devi Engineering And Construction Pvt. Ltd. – Respondent
Arb.P. 1068 of 2022
Decided On : 03-07-2023
Arbitration - Appointment of Sole Arbitrator - Arbitration and Conciliation Act, 1996 - Section 11 (2) and (6)
Fact of the Case:
The petitioner filed a petition seeking appointment of an independent Sole Arbitrator to adjudicate the disputes between the parties arising from a bilateral agreement. The respondent raised objections regarding the maintainability of the petition, jurisdiction, and the necessity of involving a technical collaborator in the arbitration proceedings.
Finding of the Court:
The court found that the agreement between the petitioner and the respondent is bilateral, and the claims against the respondent do not fall under the agreement with the technical collaborator. The court held that the petitioner can invoke arbitration in terms of the arbitration agreement between the parties. The court also ruled that there is no impediment in constituting an Arbitral Tribunal to adjudicate the disputes between the parties.
Issues: The issues involved in the case included the maintainability of the petition, jurisdiction of the court, and the necessity of involving a technical collaborator in the arbitration proceedings.
Ratio Decidendi: The court's decision was based on the interpretation of the bilateral agreement, the arbitration clause, and relevant provisions of the Arbitration and Conciliation Act, 1996. The court emphasized the freedom of parties to terminate conciliation proceedings and the voluntary nature of conciliation as a dispute resolution mechanism.
Final Decision: The court appointed a Sole Arbitrator to adjudicate the disputes between the parties, allowing the parties to raise preliminary objections before the Arbitrator. The court also directed the parties to share the arbitrator's fee and arbitral costs equally.
JUDGMENT
Sachin Datta, J.
IA No.10357/2023 (delay)
1. This is an application filed on behalf of the respondent for condonation of delay of 29 days in filing of reply.
2. In view of the averments made in the application, the same is allowed and the delay is condoned. The reply is taken on record.
3. The application stands disposed of.
ARB.P. 1068/2022
4. The present petition under Section 11 (2) and (6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `A&C' Act) has been filed seeking appointment of an independent Sole Arbitrator to adjudicate the disputes between the parties. The disputes between the parties have arisen in the context of a bilateral agreement dated 22.05.2019 to which the petitioner and the respondent are parties.
5. The respondent is stated to be an entity in the business of construction and providing services of Seismic Job Services and Shot Hole Drilling for Oil & Gas Exploration in India and other countries.
6. On the other hand, the petitioner claims to be a well-established Oil & Gas Project Management and Consultancy Company, providing services to oil exploration companies in India, Myanmar, Indonesia and Egypt.
7. The respondent was desirous of participating in a tender floated by M/s Oil India Ltd. along with a technical collaborator. The petitioner represented to the respondent that it has a technically qualified seismic company in its portfolio, which could participate/collaborate with the respondent as a technical collaborator. An agreement dated 22.05.2019 was consequently entered into between the parties which envisages that a technical collaborator would be provided by the petitioner which would jointly participate in the bid process along with the respondent on the basis of its technical experience, as per bid qualification requirement in the tender floated by M/s Oil India Ltd.
8. The scope of work of the petitioner was that it would provide support and would be the principal coordinator for the project in question on behalf of the technical collaborator.
9. The agreement further provides that the petitioner would assist the respondent in bid preparation and submission and would also represent the technical collaborator in all the client meetings and the project meetings.
10. For its services under the agreement, it was provided that the respondent would pay to the petitioner service charges equivalent to 1% of the total executed contract value (excluding taxes). Apart from the same, it was contemplated that the respondent would pay technical fees of 1.25% of the total executed contract value (excluding taxes) to the technical collaborator.
11. The bilateral agreement between the petitioner and the respondent itself contemplates that a separate agreement would be signed between the respondent and the technical collaborator governing payment terms and conditions for the technical collaborator. The salient terms of the bilateral agreement between the petitioner and the respondent are reproduced as under:
"2. It has been further agreed that in the bidding process, WGS will provide support, and will be the Principal Coordinator for the said PROJECT on behalf of the TECHNICAL COLLABORATOR.
3. Both parties shall make their best efforts to obtain
the intended PROJECT. 4. WGS, without undertaking any financial or contractual commitment to DEC/CLIENT, will assist DEC in bid preparation and submission. For this purpose of bid submission, WGS is an Authorized Representative on behalf of TECHNICAL COLLABORATOR WGS would represent Technical Collaborator in all the client meetings and project meetings.
5. In case of PROJECT is awarded to DEC from CLIENT, through any arrangements either JV or MOU or Consortium Agreement or Technical Collaboration or any other agreement, which is supported by WGS and by its technical Collaborator, DEC will pay the Service Charges equivalent to 1% of the total executed contract value [Excluding Taxes) to WGS. Also, DEC will pay the technical fees
AI
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