ARB.P. 243/2017

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$~OS-8

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 30.01.2018

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ARB.P. 243/2017

SIEMENS LIMITED

..... Petitioner

Through

Mr.Jayant Malik, Adv.

versus

JINDAL INDIA THERMAL POWER LIMITED ..... Respondent

Through

Ms.Suruchi Agarwal and Mr.Sushil

Bhatt, Advs.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No.4378/2017 (exemption)

Allowed subject to all just exceptions.

ARB.P. 243/2017

1.

This petition is filed under Section 11(6) of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as the Act) seeking

appointment of an arbitrator on behalf of the respondent. Some of the salient

facts as stated in the petition are that the respondent issued a tender dated

29.04.2011 for design, engineering, etc. of equipment/items for extension of

its 765/400 KV Angul Pooling Station (Power Grid) complete in all respects

along with metering yard and civil work etc.

2.

On 21.07.2011, the bid of the petitioner was accepted and a letter of

intent was entered into between the parties envisaging the scope of work @

ARB.P. 243/2017

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Rs. 18,81,00,000/-. On 17.09.2011, two separate orders were placed by the

respondent. It is the case of the petitioner that on 02.06.2014, the work under

the contract was completed to the respondent’s satisfaction.

3.

Disputes having arisen between the parties, the petitioner on

02.01.2017 invoked the arbitration clause and nominated Mr.Justice

Vikramjit Sen (Retd.) as an arbitrator in accordance with the terms of the

contract. The case of the petitioner is that despite receipt of notice dated

02.01.2017 invoking the arbitration clause and lapse of 30 days period

during which, as per the arbitration clause, the respondent was requested to

resolve the disputes, the respondent failed to resolve the disputes. Thereafter

another 30 days lapsed but the respondent took no steps to appoint their

Arbitrator.

4.

The respondent have filed their affidavit in opposition. It is their

contention that in terms of clause 11 and 14 of the Contract the parties have

to first endeavour to resolve all the disputes amicably between themselves

arising in connection with the contract and in case any of the disputes remain

unresolved within 30 days of the matter being raised by either party, either

party may refer the disputes for settlement through arbitration. It is urged

that by the same notice, the petitioner sought resolution of the disputes and

also sought invocation of the arbitration clause prematurely. Hence, it is

pleaded that the petition of the petitioner is premature.

5.

I have heard learned counsel for the parties.

6.

Learned counsel for the petitioner relying upon the Judgment of the

Supreme Court in the case of Datar Switchgears Ltd. vs. TATA Finance

Ltd., (2000) 8 SCC 151 has reiterated that the respondent having failed to

nominate their arbitrator as required and are now disqualified from doing so

ARB.P. 243/2017

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and this court may appoint the arbitrator on behalf of the respondent.

Reliance is also placed on the judgment of the Supreme Court in the case of

Visa International Ltd. v. Continental Resources (USA) Ltd., (2009) 2 SCC

55 and judgment of this court in the case of Ravinder Kumar Verma v.

BPTP Ltd., 2015 (147) DRJ 175.

7.

Learned counsel for the respondent has opposed the petition. She has

reiterated her contention as stated in the reply, namely, that the invocation is

premature. It is urged that the procedure as prescribed in the arbitration

clause has not been followed. It is urged that even after notice dated

02.01.2017 and filing of the present petition on 11.04.2017, there has been

continuous efforts by the parties to settle the matter and meetings have taken

place on 16.02.2017 and 18.04.2017. Reliance is also placed on a

communication dated 01.05.2017 which was sent by the petitioner where the

petitioner have taken a stan