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IN THE HIGH COURT OF DELHI
Sanjeev Sachdeva, J.
Sudhir Power Ltd. - Appellant
Versus
Simplex Infrastructures Ltd. - Respondent
Arb.P. 423 of 2022
Decided On : 04-05-2022
Petitioner's efforts to initiate pre-arbitration steps were sufficient despite the respondent's non-engagement; an Arbitral Tribunal was justified to adjudicate the matter.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Clause regarding resolution of disputes - Pre-arbitration steps - Court noted that petitioner made sufficient efforts to initiate pre-arbitration steps as specified in the agreement, including multiple correspondences, yet received no response from the respondent. The arbitration clause mandates resolution via discussions, failing which disputes are to be referred to arbitration. (Paras 6, 10, 12, 13)
(B) Judicial Findings - Court confirmed the necessity for an Arbitral Tribunal to adjudicate the claims due to the respondent's non-response, establishing that lack of engagement by one party does not preclude pursuit of arbitration. (Paras 11, 12)
Facts of the case:
Disputes arose from a work order dated 19.10.2015, with petitioner asserting non-payment. Respondent contended pre-arbitration discussions were not conducted.
Findings of Court:
The petition is allowed; an Arbitral Tribunal is to be constituted due to the failure of the respondent to engage in pre-arbitration steps as required.
Issues: Whether the petitioner followed the pre-arbitration steps required under the contract and the validity of arbitration due to the respondent's lack of engagement.
Ratio Decidendi: The court determined that the respondent's failure to respond to communications from the petitioner invalidates their claim that the petitioner did not fulfill the pre-arbitration steps, justifying the formation of an Arbitral Tribunal.
Result: Petition allowed.
| Table of Content |
|---|
| 1. reference of disputes based on work order (Para 1) |
| 2. parties' arguments regarding pre-arbitration steps (Para 2 , 3 , 4) |
| 3. court's findings on pre-arbitration compliance (Para 5 , 8 , 9 , 10 , 11 , 12) |
| 4. explanation of the arbitration clause (Para 6 , 7) |
| 5. order to constitute arbitral tribunal (Para 13 , 14 , 15 , 16 , 17) |
JUDGMENT
Sanjeev Sachdeva, J. Petitioner seeks reference of disputes that have arisen between the parties pursuant to work order dated 19.10.2015.
2. Learned counsel for the respondent submits that the petitioner has not followed the pre arbitration steps as per the arbitration clause.
3. He submits that the disputes were to be resolved through direct and mutual discussion at site level and thereafter the matters were to be referred to the regional heads of both the companies. He submits that petitioner has not approached the respondent for amicable/mutual discussion but has only made demands for payment of his amount.
4. Learned counsel for the petitioner, per contra, contends that several e-mails and notices were issued to the respondent requiring the respondent to pay the due amount, however, no settlement has taken place and even the emails and notices have not been even replied.
5. I am unable to accept the contentions of the learned counsel for the respondent for the reasons that there is no dispute that parties have agreed to resolve their disputes through arbitration.
6. The arbitration clause reads as under:
"Resolution of Disputes
All disputes and/or differences arising out of this work order or differences of opinions, interpretation of clause, technical Specifications etc. shall be resolved through direct and mutual discussions at site level.
In the case of difference of opinion still persists, then the matter shall be referred to Regional Head of both the companies.
In case, parties fail to reach amicable settlement, all above stated disputes shall be referred to arbitration for adjudication. The Arbitration shall be governed as per Arbitration &Conciliation Act 1996. The seat and Venue of the Arbitration shall be New Delhi and subject the Arbitration Court at Delhi shall have exclusive Jurisdiction. The Language of Arbitration shall be English. The proceeding of the Arbitration unless extended shall be completed within one year."
7. The arbitration clause provides that all disputes and differences are to be resolved through direct and mutual discussion at site level and thereafter referred to the regional heads of both the companies.
8. The pre arbitration steps stipulated by the agreement are merely facilitative steps for amicable resolution of the disputes. Petitioner has placed on record several correspondences in the shape of e-mails and notices sent to the respondent making demand of the alleged due amount and raising grievance with regard to non-payment of the same.
9. As per the petitioner none of the e-mails or replies have been responded to by the respondent. Even the notice invoking arbitration has not been responded to.
10. Since the respondent has not even responded to any of the demands made by the petitioner, it would not be permissible for the respondent to contend that petitioner has not followed the pre arbitration steps for resolution of the disputes.
11. This is not a case where parties had agreed to refer the disputes to a third party or an expert for conciliation or resolution prior to arbitration. The pre arbitration steps envisaged in the agreement are merely steps for amicable resolution inter parties. Petitioner has sent several e-mails and reminders to the respondent and respondent has failed to even respond to the same. Petitioner cannot be left high and dry by the respondent failing to even respondent to the demands made by the petitioner.
12. In view of the above, I am satisfied that petitioner has made all efforts to initiate pre arbitration steps. However, the resolution has not been possible. Accordingly, it is a fit case w
