OC-28 ORDER SHEET IN THE HIGH COURT AT CALCUTTA ORDINARY ORIGINAL CIVIL JURISDICTION (COMMERCIAL DIVISION)

ORIGINAL SIDE AP/765/2022 M/S.BIANCA EQUIPMENTS VS SIMPLEX INFRASTRUCTURE LIMITED BEFORE:

The Hon’ble JUSTICE SHAMPA SARKAR Date: 12th February, 2025.

Mr. Rahul Das, Adv.

Mr. Sunil Kumar Singhania, Adv.

Ms. KalpanaSinghania, Adv.

… for the petitioner.

Mr. Abhishek Banerjee, Adv. Mr. Roshan Sengupta, Adv.

Ms. Mihika Roy, Adv.

for respondent.

The Court : This is an application for appointment of an Arbitrator on the strength of a dispute resolution clause, i.e., Clause No. 17 of the work order dated July 1, 2018.

The clause is set out hereunder:-

“In the event of any difference or dispute arising out of or in connection with this work order, the same shall be first amicably settled by mutual dialogue. If the parties fail to settle their difference or dispute arising out of or in connection with this work order (including interpretation of the terms thereof), the same shall be referred to arbitration. The Arbitration proceedings shall be conducted by a single Arbitrator appointed by the Company Secretary of Simplex Infrastructures Ltd., and the award/decision of such arbitrator shall be final and binding upon both the parties. The venue of the arbitration shall be Kolkata. However, the work shall not be stopped during the pendency of the proceedings and it shall be ensured that such work is proceeded uninterruptedly.”

The venue of the arbitration was agreed to be Kolkata.

The petitioner claims to be engaged in the business of construction of road, railways projects, industry, power and transmission lines etc. The case run by the petitioner is that, the respondent allegedly approached the petitioner for availing of services of hiring cranes, for their project at Meja Thermal Power Project at Allahabad. A letter of intent dated April 6, 2018 bearing No. 012/PC/C3242/P&M/VOL-1/001345 and the work order dated July 1, 2018 bearing No. WH32423242/180701000001 were allegedly issued by the respondent. The petitioner contends to have provided satisfactory service to the respondent. The respondent did not raise any dispute or objection with the services provided. Bills were raised and those were duly received by the respondent. As per the work order, the payment was to be made within thirty days from submission of the bills. The respondents made part payment, but the payments as per the invoices were not made.The respondent defaulted in complying with the terms and conditions of the work order. Bills from January 2019 to September 2019 and 2018-2019 and 2019 to 2020 amounting to Rs.60,04,328/- approximately have been annexed to this application. The petitioner submits that the said bills/invoices remain unpaid. According to the petitioner, the outstanding with principal and interest is beyond Rs.83 lakhs. The fact that the respondenthad made part payment to the petitioner will be available from Form 26AS of the petitioner. Thus, the liability of the respondent under the work order is evident. It is submitted by Mr. Das that, although the letter of intent did not contain an arbitration clause, the work order which followed the letter of intent, contained an arbitration clause and the work order was forwarded to the petitioner by an email issued by a representative of the respondent Mr. Arin De, who was responsible for preparation of the work order. The same was approved by Mr. Rajesh Kumar Mishra. Mr. Rajesh Kumar Mishra was the contact person mentioned in the letter of intent. Communication/documents electronically received, would also be treated as an agreement in writing under Section

7(4)(b).

Relying on the nature of work mentioned in the letter of intent and the work order, Mr. Das submits that the work order was issued and formally communicated, to give further effect to the letter of intent by formalising the contract. The invoices have been referred to in support of the contention that, the amount claimed by the petitioner was still outstand