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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 18.07.2017

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ARB.P. 406/2017

SCORPIO ENGINEERING PRIVATE LIMITED

..... Petitioner

versus

INDIAN POWER CORPORATION (HALDIA) LIMITED

& ANR.

..... Respondents

Advocates who appeared in this case:

For the Petitioner : Mr. Manu Seshadri with Ms. Sahiba Ahluwalia, Mr. Arjun Syal

and Mr. Ishan Bisht, Advocates.

For the Respondent :

Mr. Karun Mehta, Advocate for respondent No.1.

Mr. Ravi Kishore with Mr. Alok Kumar Srivastava, Advocates

for respondent No.2.

CORAM:-

HON’BLE MR JUSTICE SANJEEV SACHDEVA

JUDGMENT

18.07.2017

SANJEEV SACHDEVA, J. (ORAL)

1.

The petitioner has filed the present petition under Section 11 of the

Arbitration & Conciliation Act, 1996(hereinafter referred to as ‘the Act’).

2.

By this petition, the petitioner seeks appointment of an independent

sole arbitrator to determine and adjudicate the disputes and claims between

the parties.

3.

The petitioner Company was called upon by the respondent No.1

company to submit its bid for designing, engineering, manufacturing,

supply, erection, commissioning of coal handling project/system of the

3x150 MW Power Plant in Haldia, Purba-Medinipur, West Bengal.

4.

The bid was accepted and, accordingly, an agreement was entered

into between the parties. Consequent to the agreement, a purchase order

was placed on the petitioner by the respondent No.2 on 20.12.2013.

5.

The petitioner along with the respondent Nos.1 and 2 entered into an

agreement on 20.12.2013 and also agreed to the General Commercial

Terms and Conditions, which, interalia, contain the arbitration agreement.

6.

The arbitration agreement as contained in the General Commercial

Terms and Conditions reads as under:-

“29.0 ARBITRATION

be at NOIDA/New Delhi/Delhi.”

7.

Learned counsel appearing for the respondent No.1 submits that

though, respondent No.1 had signed the General Commercial Terms and

Conditions, there were no obligations on the respondent No.1 to be

performed under the contract and, claims, if any of the petitioner, would be

only against the respondent No.2.

8.

The issue raised by the respondent No.1 that there are no obligations

of the respondent No.1 to be performed qua the petitioner is not an issue

that arises for consideration in a petitioner under section 11 of the Act

seeking appointment of an Arbitrator. This would be subject matter of the

proceedings before the arbitrator. This Court while considering an

application under Section 11 of the Act, is not to examine the

maintainability of a claim or the defence of the respondents. This court is

required to ascertain as to whether there is an arbitration agreement

between the parties and as to whether there are disputes.

9.

Admittedly, the parties have signed the General Commercial Terms

and Conditions, which contain the arbitration clause and admittedly, there

are disputes between the parties. The requirements of Section 11 of the Act

are, thus, satisfied.

10.

The petitioner issued a notice dated 14.04.2017 calling upon the

respondents to pay the amount claimed by the petitioner, failing which, it is

stated that the disputes would be deemed to have arisen and referred to

arbitration in terms of Clause 29 of the General Terms and Conditions.

11.

The notice dated 14.04.2017 was received by the respondents on

20.04.2017. This petition has been filed on 06.06.2017 and, admittedly, till

date, no arbitrator has been appointed by the respondents.

12.

Learned counsel for the respondents submits that, without prejudice

to the defence of the respondents, they have no objection to the

appointment of an independent sole arbitrator by this Court to adjudicate

the disputes between the parties.

13.

Accordingly, Mr. Justice Mukul Mudgal, (Retired) Former Chief

Justice of Punjab & Haryana High Court is appointed as the sole Arbitrator

to adjudicate the disputes between the parties. This is subject