This petition under Section 11[5] of the

Arbitration and Conciliation Act, 1996 [for short, ‘the

Arbitration Act’] is for the appointment of a sole

Arbitrator. The petitioner and the respondent have

entered into “Licensing and Supply Agreement” dated

22.04.2021 [the Agreement], and the respondent has

agreed to provide Risk Evaluation and Mitigation

Strategy [REMS] - a document required to be filed

with the United States Food and Drug Administration

[FDA] along with the First Application for approval of

Mycophenolate Mofetil for Oral Suspension [the subject

Drug].

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2.

The respondent has paid US $ 945,000 to

the petitioner in consideration of the license to

commercialize the use of the subject drug upon

issuance of the FDA’s approval with the petitioner

agreeing to ensure that the FDA approval is obtained

within a period of ten months from the date of receipt

of REMS. The petitioner and the respondent have

agreed for extension of this timeline by a further two

months. The petitioner and respondent do not

dispute that the FDA has refused approval, and

thereafter there is exchange of legal Notices and

emails between the petitioner and the respondent.

3.

The respondent has addressed letter dated

21.04.2022 to the petitioner stating that both have

mutually agreed to terminate the Agreement with the

petitioner agreeing to refund the license fee of US $

9,45,000 in the schedule as indicated in such letter¹.

1 The Schedule of Payment indicated is as follows:

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The respondent has later issued a demand dated

30.08.2022 for refund in a sum of Rs.8,32,97,970/-,

and the respondent, after exchange of E-mails with

the petitioner’s representative, has issued demand on

21.10.2022

for

the

aforesaid

amount

in

the

prescribed form for the purposes of Section 8 of

Insolvency and Bankruptcy Code, 2016 [IBC 2016].

The petitioner on 11.11.2022 has responded to such

demand asserting that the FDA has refused approval

because of the petitioner’s failure to perform

according to the terms of the Agreement.

4.

The respondent, on 14.12.2022, has filed

an application under Section 9 of IBC 2016 with

National Company Law Tribunal, Hyderabad Bench

1. First Installment of US $500,000 within thirty days

from receipt of this letter;

2. Second Installment of US $225,000 within thirty days

from date of payment of the first installment above; and

3. Third Installment of US $220,000 within thirty days

from the date of payment of the second installment

above.

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[NCLT – the Adjudication Authority under IBC 2016],

and the petitioner is served with the notice of such

application. The NCLT, on the petitioner’s request,

has granted multiple adjournments to file Statement

of Objections. As of today, the respondent’s

application is listed before the NCLT on 05.10.2023

and the petitioner is yet to file Statement of

Objections.

5.

The petitioner has filed the present

petition on 07.03.2023 for the appointment of a sole

Arbitrator relying upon the agreement for arbitration

in the Agreement, and the agreement for arbitration

as incorporated in the Agreement reads as under:

“27. Governing Law and Arbitration

This Agreement shall be governed by

and construed in accordance with the laws of

India (without regard to the conflict of laws

principles of such state), including all matters

of construction, validity and performance. In

event of dispute arising out of or in relation to

this Agreement, the Parties shall try and settle

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the issue amicably, failing which, the Parties

shall submit the dispute for arbitration under

Indian Arbitration and Conciliation Act, 1996

and the rules framed there under as amended

from time to time (“Rules”). The arbitration

shall be held in Bangalore, India and shall be

conducted

in

English

by

one

arbitrator,

appointed by both the Parties in accordance

with

said

Rules. The

decision

of

such

arbitrator shall be written, reasoned, final,

binding and conclusive on the Parties, and

award thereon may be enforced in an