J U D G M E N T

DINESH KUMAR SHARMA, J. (Oral)

1. By way of the present petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter, referred to as the „A&C Act‟), the petitioner seeks appointment of Arbitral Tribunal comprising of a Sole Arbitrator to adjudicate the disputes between the parties.

2. Learned counsel for the petitioner submits that the dispute has arisen out of the work order dated 12.10.2015 awarded by the respondent to the petitioner. The agreement entered into between the parties for Terminal Transportation of Loaded / Empty Containers Contractor For Container Corporation Of India Ltd at ICD/TKD.

3. The arbitration clause between the parties is not disputed.

4. Learned counsel for the petitioner has submitted that the petitioner was required to install GPS and VMTs in the trailers with suitable compatibility with the Respondent's CCLS System. Learned counsel for the petitioner submitted that since the petitioner was informed that MIS department officers of the respondent were in process of making changes / update in the Company’s CCLS system and therefore, the delay took place.

5. Learned counsel submits that finally the VMTs with suitable compatibility with the Respondent’s CCLS system were installed in the 50 trailers and after training of the staff of the respondent and the petitioner’s staff, the installation was completed on 30.06.2016. learned counsel for the petitioner submitted that thereafter the dispute arose between the parties which was informed to the respondent vide email dated 26.02.2020, 10.06.2020 and 18.09.2020. The respondent was also called for conciliation process. However, no positive steps were taken by the respondent.

6. Learned counsel for the petitioner submits that vide letter dated

14.11.2019, extended the Contract for one year and arbitrarily directed the petitioner to remove the VMTs from all 50 trailers deployed by the petitioner and further directed to reduce the number of trailers by 10 and reduce the monthly hiring rates.

7. Learned counsel for the petitioner submitted that the VMTs were purchased for 5 years on a finance basis and the Petitioner is regularly paying the EMI’s for such VMTs from the payment received from the Respondent against the bills raised. It has been submitted that the VMTs installed in the trailers cannot be used at any other company’s project as the VMTs were specifically designed and developed as per the compatibility requirements of the Respondent.

8. Learned counsel for the petitioner submitted that in view of the same the petitioner demanded a sum of Rs. 6,67,33,174/- from the respondent on account of following heads:

a. Rs.60,54,952/- as 50% of total cost incurred by the Petitioner for purchase of VMTs installed in 50 trailers.

b. Rs.4,57,80,222/- as loss suffered due to reduction of trailers from

50 to 40.

c. Rs. 1,48,98,000/- as cost of salary for idle drivers employed for movement of trailers.

9. Learned counsel for the petitioner submitted that though the dispute started when the respondent started deducting unjustified amounts from our vendors bills on account of alleged delay in installation of Vehicle Miles Travelled (VMT) equipment in trailers amounting to Rs. 88,84,000/-. These amounts were deducted from the period 29.03.2016 to 13.07.2016.

10. Learned counsel for the petitioner submitted that during this period the parties were maintaining a running account. Learned counsel submits that petitioner vide a notice dated 12.11.2022 invoked the arbitration clause raising a dispute of Rs.7,56,17,174/- (Rupees Seven Crore Fifty Six Lakhs Seventeen Thousand One Hundred Seventy Four Only), in view of Clause-21.1 of the agreement between the parties.

11. Learned counsel for the petitioner submitted that the clause provides the appointment of an Arbitrator by the respondent which is illegal in view of the judgment of the Supreme Court in Perkins Eastman Architects DPC & Anr. v. HSCC (India) Limited 2019 SCC OnLine SC 1517.

12. Lea