ARBAPPL/52/2014 of M/s. Schindler India Private Limited, Vs M/s. Pochiraju Industries Limited on 31 December 2019

ORDER

The case of the applicant - company is that it ir.; involved in thebusiness of manufacturing and sale of elevators and e scalators, and itentered into an agreement with the respondent - company on 12.11.2010,for supply of eler,ators, and accordingly as per the agrer-.ment it suppliedthree elevators and raised bill for payment of Rs.32,60,000/- :Rupees thirtytwo lakhs, sixty thousand only), but the respondent paid cnly an amount ofRs.29,70,000/- (Rupees twenty nine lakhs, seventy thoirsand only), andfailed to pay the balance amount. Therefore, it issued notices on 07.02.2013and 07.O2.2074, to pay the balance amount, but as there was rto response, itissued notice on 04.04.2014, invoking the arbitration clause and forappointment of an arbitrator. In spite of receipt of the said notice dated04.O4.20t4, as there was no response, applicant filed the [p'esent ]applicationunder Section 11(6) of the Arbitration and Conciliation Act. 19,96, read withScheme to Appointment of Arbitrators, 2006, seeking to appoint solearbitrator to adjudicate the claims and disputes between tt-re applicant [-]company and the "espondent - company.

Though not ce is served on the respondent, there is 1o representationon lts behalf, and ro :ounter affidavit is filed.

Learned coJnsel for the applicant reiterating the zbove averments,further submits tlat the respondent - company also iss:ed notice dated28.08.2019 for conduct of its 24th Annual General Meeting.

Clause 18 of the commercial terms and conditions )f tie agreementdated 12.11.2010 rer ds as follows:

"If any dispute, controversy or claim between the pa.tie:; arises out ofor in connection w th the agreement, including the e <istt:nce, breach,termination or validity thereof (dispute), the parties shall L se a I reasonableendeavors to negotiate with a view to resolve the disput -' arricably. If aparty gives the other party notice that a dispute has arisen (a Dispute Notice)and the parties are unable to resolve the dispute amiably rvitl in 15 days of

service of the Dispute Notice (or such longer period as the parties maymutually agree), then the Dispute shall be referred to arbitration.

Any dispute shall be referred to and finally resolved by arbitrationunder the Arbitration and Conciliation Act, 1996. The number of arbitratorsshall be one, mutually accepted by the parties. The seat of arbitration shallbe Mumbai. The language of the arbitration shall be English. Jurisdiction forpurpose of the Arbitration and Conciliation Act, 1996 shall be lvlumbai."

The above clause in the agreement provides that if a dispute arisesbetween the parties, the same shall be resolved amicably by negotiations,and if a party gives dispute notice to the other party, and if the parties areunable to resolve the dispute amicably, then the dispute shall be referred toarbitration.

In the present case, the applicant has issued notices on 07.02.2013and 07.02.2014 to the respondent seeking for payment of balance amount,and the said notices are stated to have been served on the respondent. Theapplicant along with this arbitration application, filed photo copies of theacknowledge m e nts. As there was no response in spite of receipt of notices,the applicant issued notice dated 04,04.2014, in terms of Clause 18 of theagreement for appointment of sole arbitrator to resolve the dispute for non-payment of the amount. In the said notice, the applicant sought to appointMs. Shruti Desai, Advocate, High Court of Mumbai, 1't floor, Yousuf Building,Near Flora Fountain, Fort Mumbai - 400 001, as the sole arbitrator, toresolve the dispute. As there was no response from the respondent in spiteof receipt of said notice, the present application is filed.

As noted above, in the present application, though notice was servedon the respondent, there is no representation, and no counter affidavit isfiled denying the assertions made by the appllcant.on the respondent, there is no representation, and no counter affidavit isfiled denying the assertions made by the appllcant.

In view of the same, and having regard to the facts and circumstancesof the case, the present arbitration application is allowed and Sri AshokJayawant Patil, Advocate, Bombay High Court, is appointed as sole arbitratorto adjudicate the claims and disputes between the parties to the application.

To

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The learne,d Arbitrator shall be entitled to fees as per the ratesspecified in the Fourth Schedule to the Act of 1996, inseted 5y Act 3 of2016 with effect from 23-70-2015, which shall be borne by roth parties inequal sh a res.

Interlocutory rpplications pending, if any, shall stanr clc,sed. No orderas to costs.

\S J/-B.S,CHIRANJEEVIJC)INT R GISTRAR

//TRUE COPYII

SE,CTIOFFICER

1. Sri Ashok Jayarvant Patil, Advocate, Bombay High Court, E rrol mentNo.MAH/1333/'999, R/o.CALCOT HOUSE, 3'o Floor, 8/10, M F Shetty lvlarg,Mumbai-400001, Cell No.09820783872 Email: ashok [j]patil(D hc tmail.comNo.MAH/1333/'999, R/o.CALCOT HOUSE, 3'o Floor, 8/10, M F Shetty lvlarg,Mumbai-400001, Cell No.09820783872 Email: ashok [j]patil(D hc tmail.com

2. One cc to Sri N Praveen Reddy, Advocate (OPUC)

3. One cc to Sri J.Ch Y.Narasimham, Advocate [(OPUC)]4. Two CD Copies4. Two CD Copies Kj\ l--- HIGH COURT

DATED:31/1212019

ORDERARBITRATION [APPI'.lCAT|ON No ][52 ][of ][2014]

ALLOWING [THE ][A.P..]

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