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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 9^th July, 2025 + ARB.P. 2020/2024 PRISM JOHNSON LTD .....Petitioner Through: Mr. Abhimanyu Mahajan, Mr. Victor Das, Mr. Vipul Singh, Mr. Yash Jain, Ms. Anubha Goel and Mr. Mayank Joshi, Advocates.

versus DOOSAN POWER SYSTEMS INDIA PVT LTD .....Respondent Through: Mr. Nitin Ray, Senior Advocate with Mr. Deepak K., Mr. Abhishek Bansal and Ms.

Ankita, Advocates.

CORAM:

HON’BLE MS. JUSTICE JYOTI SINGH

JUDGEMENT

JYOTI SINGH, J.

1. This petition is filed on behalf of the Petitioner under Section 11(4)(a) and (6) of the Arbitration and Conciliation Act, 1996 (‘1996 Act’) for appointment of nominee Arbitrator of the Respondent Company to adjudicate the inter se disputes between the parties.

2. To the extent relevant, case of the Petitioner is that in the year 2017, Respondent approached the Petitioner for procuring ready-mix concrete for a Thermal Power Project ‘Obra C Extension Thermal Power Station’ in Uttar Pradesh. Petitioner and Respondent entered into a Sub-Contract dated 08.07.2017 for the said project, under which Petitioner agreed to carry out works for consideration and on the terms and conditions specified therein. ARB.P. 2020/2024 Page 1 of 29 Signature Not Verified Digitally Signed Respondent issued a Purchase Order dated 25.07.2017, as per which Petitioner was required to supply 2,68,798 cum of ready-mix concrete to the Respondent. During the contract period, apart from agreed quantity of 2,68,798 cum, Petitioner on demand from the Respondent from time to time, supplied additional quantities also, in respect of which revised Purchase Order was issued on 07.07.2020. Revised purchase order was, however, not acceptable to the Petitioner and thus, it was mutually agreed that the concrete will be supplied as per terms of the original sub-contract.

3. It is averred that for the first time, vide its letter dated 16.09.2021, Respondent raised frivolous claims towards penalties, interest, liquidated damages, extra material etc., which were refuted by the Petitioner vide letter dated 17.09.2021. At the same time, Petitioner sent a demand notice dated 30.12.2021 to the Respondent for payment of unpaid operational debt under Section 8 of Insolvency and Bankruptcy Code, 2016 (‘IBC’). By letter dated 28.02.2022, Respondent admitted that as on 31.12.2021, a sum of Rs.9,23,99,780.71/- towards running accounts and Rs.81,25,299/- towards retention monies was due and payable to the Petitioner. Petitioner filed a petition under Section 9 of IBC, being Company Petition (IB)-474(ND)2022 before NCLT, Delhi against the Respondent, which was dismissed on 03.03.2023, against which Petitioner approached NCLAT in Company Appeal (AT)(INS) No.570/2023, which is stated to be pending for final hearing.

4. It is further averred that the contract between the parties contains Arbitration Clause 25 in the General Terms of Conditions (‘GTC’) and since disputes had arisen, Petitioner sent a notice dated 13.09.2024 to the Respondent under Section 21 of 1996 Act invoking the arbitration ARB.P. 2020/2024 Page 2 of 29 Signature Not Verified Digitally Signed agreement. By a subsequent letter dated 08.10.2024, Petitioner nominated its Arbitrator and intimated the same to the Respondent, however, vide letter dated 11.10.2024, Respondent refused to nominate its nominee Arbitrator stating that the invocation notice by the Petitioner was contrary to Clause 25(b) of GTC as amended by Special Terms and Conditions (‘STC’), providing that disputes shall be settled by arbitration in accordance with Rules of Domestic Commercial Arbitration of the Indian Council of Arbitration (‘ICA Rules’) and was therefore non-est with no legal consequence. Since period of 30 days passed without the Respondent nominating its Arbitrator or in the alternative amicably resolving the disputes by conciliation, Petitioner approached this Court for appointment of nominee Arbitrator of the Respondent in terms of the Arbitration Clause which env