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$-5
{< N THE HIGH COURT OF'DELHI AT NEW DELHI
+ ARB.P. 330/20t2
NVS GARG AUTOMATION & CONTROLS ..... Petitioner
Through Mr.Hemant Chaudhri, Adv. with
Mr.Chanchal Kumar. Adv.
$-5
{< N THE HIGH COURT OF'DELHI AT NEW DELHI
+ ARB.P. 330/20t2
NVS GARG AUTOMATION & CONTROLS ..... Petitioner
Through Mr.Hemant Chaudhri, Adv. with
Mr.Chanchal Kumar. Adv.
VERSUS
M/S TRI NET SOLUTIONS PVT LTD ..... Respondent
Through Ms.Shuchismit4Adv.
Through Ms.Shuchismit4Adv.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
" 18.02.2013
The present petition has been filed by the petitioner under Section 11 of the Albitration and Conciliation Act, 1996 for appoinf,nent of an arbitator.
The case of the petitioner is that the petitioner is engaged in the business of providing computer qystems on rent. It is stated in the petition that an agreernent dated 14th April, 2OO7 was executed between the petitioner and the respondent, whereby the petitioner had agreed to give the computer systems on rent to the respondent. It is also stated in the petition that the petitioner delivered the cornputer systerns and used to issue monthly invoice for the previous months' rent against the said computer systems.
Initially the respondent was making timely payments to the petitioner but later on started delaying. The petitioner requested the respondent to rnake timely payments. However, respondent did not pay any heed to the recluest of the petitioner which led to an outstanding amount of {9,87,g731- against the invoices raised. Despite several follow ups by the petitioner by way of
.y
2013:DHC:8035
" 18.02.2013
The present petition has been filed by the petitioner under Section 11 of the Albitration and Conciliation Act, 1996 for appoinf,nent of an arbitator.
The case of the petitioner is that the petitioner is engaged in the business of providing computer qystems on rent. It is stated in the petition that an agreernent dated 14th April, 2OO7 was executed between the petitioner and the respondent, whereby the petitioner had agreed to give the computer systems on rent to the respondent. It is also stated in the petition that the petitioner delivered the cornputer systerns and used to issue monthly invoice for the previous months' rent against the said computer systems.
Initially the respondent was making timely payments to the petitioner but later on started delaying. The petitioner requested the respondent to rnake timely payments. However, respondent did not pay any heed to the recluest of the petitioner which led to an outstanding amount of {9,87,g731- against the invoices raised. Despite several follow ups by the petitioner by way of
.y
2013:DHC:8035
t"t personal meetings, mails, letters and telephonic conversations, the respondent did not pay the said outstanding amount, thus, the petitioner sent a legal notice dated 9th March, 2012 to the respondent, invoking the arbitration clause as contained under Clause 22 of the agreement. The respondent neither paid the said outstanding arnount nor set up arbitral tribunal to adjudicate the claims of the petitioner. Hence, the present petition has been filed for appoinftnent of an Arbinator.
Notice of the petition was issued to the respondent. Reply has been filed by the respondent. The objections raised by the respondent are that agreement dated 14'h April, 2007 was not renewed between the parties and there is delay in invoking the arbitration clause.
On this aspect, the learned counsel for the petitioner has referred to the judgrnent of the Supreme Court in the case of Indian Oil Corporation
Ltd. v. SPS Engineering Ltd., reported as AIR 2011 SC 987 wherein it was observed:
*I2. An application under Section 11 of the Act is expected to contain pleadings about the existence of a dispute and the existence of an arbitration agreement to decide such dispute. The applicant is not expected to justify the claim or plead exhaustively io regard to limitation or produce documents to demonsfiate that the claim is within time in a proceedings under Section 11 of the Act. That issue should normally be left to the fubin'al Tribunal. If the Chief Justice or his designate is of the view that in addition to exarnining whether there is an arbitration agreement between the parties, he should consider the issue whether the claim is a dead one (long tirne barred) or whether there has been satisfaction of mufual rights and obligation under the contact, he should record his intention to do so and given an opporhrnity to the parties to place their materials on such issue. Unless parties are put on notice that such an issue will be
I t i
I
I tc t examined they will be under the impression that only questions of jurisdiction and existence of arbitation agreement between the parties will be considered in such proceedings."
From the statements of account filed by the petitioner, it appears that the respondent has lastly made some payment in the rnonth of June, 2009 to the petitioner. Notice invoking the arbiftation was addressed to the respondent in the month of March, 2012 within the period of three years. In view of the above said
Notice of the petition was issued to the respondent. Reply has been filed by the respondent. The objections raised by the respondent are that agreement dated 14'h April, 2007 was not renewed between the parties and there is delay in invoking the arbitration clause.
On this aspect, the learned counsel for the petitioner has referred to the judgrnent of the Supreme Court in the case of Indian Oil Corporation
Ltd. v. SPS Engineering Ltd., reported as AIR 2011 SC 987 wherein it was observed:
*I2. An application under Section 11 of the Act is expected to contain pleadings about the existence of a dispute and the existence of an arbitration agreement to decide such dispute. The applicant is not expected to justify the claim or plead exhaustively io regard to limitation or produce documents to demonsfiate that the claim is within time in a proceedings under Section 11 of the Act. That issue should normally be left to the fubin'al Tribunal. If the Chief Justice or his designate is of the view that in addition to exarnining whether there is an arbitration agreement between the parties, he should consider the issue whether the claim is a dead one (long tirne barred) or whether there has been satisfaction of mufual rights and obligation under the contact, he should record his intention to do so and given an opporhrnity to the parties to place their materials on such issue. Unless parties are put on notice that such an issue will be
I t i
I
I tc t examined they will be under the impression that only questions of jurisdiction and existence of arbitation agreement between the parties will be considered in such proceedings."
From the statements of account filed by the petitioner, it appears that the respondent has lastly made some payment in the rnonth of June, 2009 to the petitioner. Notice invoking the arbiftation was addressed to the respondent in the month of March, 2012 within the period of three years. In view of the above said
ORDER
of the Supreme Court, the contention of the respondent is rejected. However, it is open to the respondent to raise the said objection before the arbitator at the appropriate stage who will decide the same in accordance with law.
In view of the above, the present petition is allowed. Considering the overall facts and circumstances, Mr. Amiet Andlay, Advocate (Mobile
No.9811151686) is appointed as the sole fubitrator to adjudicate all the disputes and differences between the parties arising out of the agreement dated 14th April, 2007 . The parties have also agreed that the arbitration may take place under the aegis of Rules of the Delhi High Court Arbitation
Cenfre. The fees of the Arbitator be also paid under the said Rules.
Parties shatl appear before the Delhi High Court Arbination Centre on 14tl'
March, 20L3.
The petition is accordingly disposed of.
Copies of this order be given dasti to the learned counsels for the parties. A copy of the order be also sent to the learned sole fubinator.
I m\eft6tilfrVilrdn,) )
FEBRUARY 1.8,2013/jk
In view of the above, the present petition is allowed. Considering the overall facts and circumstances, Mr. Amiet Andlay, Advocate (Mobile
No.9811151686) is appointed as the sole fubitrator to adjudicate all the disputes and differences between the parties arising out of the agreement dated 14th April, 2007 . The parties have also agreed that the arbitration may take place under the aegis of Rules of the Delhi High Court Arbitation
Cenfre. The fees of the Arbitator be also paid under the said Rules.
Parties shatl appear before the Delhi High Court Arbination Centre on 14tl'
March, 20L3.
The petition is accordingly disposed of.
Copies of this order be given dasti to the learned counsels for the parties. A copy of the order be also sent to the learned sole fubinator.
I m\eft6tilfrVilrdn,) )
FEBRUARY 1.8,2013/jk