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,< i HIGH COURT OF DELHI ARB.P. 24120Lr ENGINEERS INDIA LTD ."" Petitioner
Through: Mr. Dhruv Dewan, Advocate' VETSUS TEMA INDIA LTD ""' ResPondent
Through: Mr, Hasan Murtaza, Advocate.
,< i HIGH COURT OF DELHI ARB.P. 24120Lr ENGINEERS INDIA LTD ."" Petitioner
Through: Mr. Dhruv Dewan, Advocate' VETSUS TEMA INDIA LTD ""' ResPondent
Through: Mr, Hasan Murtaza, Advocate.
CORAM:
HON',BLE MR. JUSTICE VIPIN SANGHI
ORDER o/o 12.08.2011 This petition has been preferred under Section 11 of the
Arbitration & Conciliation Act, 1996 to seek the appointment of a sole independent Arbitrator in terms of Clause 34 of the General Purchase
Conditions forming part of purchase order dated 27.02.2008 issued by the petitioner to the respondent, According to the said arbitration agreement, all disputes or differences between the parties are required to be referred to arbitration in accordance with the UNCITRAL Rules as adopted in lndia by the Arbitration & Conciliation Act, 1996.
The petitioner invoked the arbitration agreement on I0.L2.2010.
Despite the issuance of the said notice, parties have not been able to arrive at a mutually agreeable Arbitrator. Consequently, this petition has been preferred.
The respondent has filed its reply. The respondent opposes the
.;t 2011:DHC:6756 "a petition on the ground that the obligation of the respondent under the contract stood discharged as force majeure conditions existed and, consequently, the respondent was not obliged to supply the equipment in question. According to the respondent, there were strikes in the
State of Maharashtra, from where the supplies had to be made. lt is argued that since force majeure conditions existed, even the arbitration agreement cannot be invoked.
On the other hand, the submission of learned counsel for the petitioner is that the petitioner has never accepted the respondent's reliance placed on the force majeure clause. Reference has been made to the letter dated I1.02.2010 issued by the petitioner, which records that the respondent was not able to supply the equipment on account of its financial crisis. Reference is also made to the petitioner's communication dated 13,04.2010, whereby the petitioner extended the delivery period and even released the balance payment against the purchase order, which was accepted by the respondent.
The issue as to whether or not force majeure conditions existed and if so, the impact of such developments on the mutual rights & obligations of the parties, is an issue which would squarely fall for the determination of the Arbitral Tribunal. Merely because, according to the respondent, force majeure conditions existed, it cannot be said that the petitioner is not entitled to seek the determination of the said issue itself in arbitration. The said issue is an issue of fact which only
/ t the Arbitral Tribunal is competent to deal with.
Accordingly, this petition is allowed. I appoint Mr. Justice R.C.
Lahoti, Retired Chief Justice of India, as the Sole Arbitrator to adjudicate the claims & counter-claims of the parties. lt is agreed that the fees of the learned Arbitrator shall be paid under the schedule of fees fixed under the rules of Delhi High Court Arbitration Centre.
The petition stands disPosed of.
AUGUST L2,?OLL ,BSR' -\ I
ORDER o/o 12.08.2011 This petition has been preferred under Section 11 of the
Arbitration & Conciliation Act, 1996 to seek the appointment of a sole independent Arbitrator in terms of Clause 34 of the General Purchase
Conditions forming part of purchase order dated 27.02.2008 issued by the petitioner to the respondent, According to the said arbitration agreement, all disputes or differences between the parties are required to be referred to arbitration in accordance with the UNCITRAL Rules as adopted in lndia by the Arbitration & Conciliation Act, 1996.
The petitioner invoked the arbitration agreement on I0.L2.2010.
Despite the issuance of the said notice, parties have not been able to arrive at a mutually agreeable Arbitrator. Consequently, this petition has been preferred.
The respondent has filed its reply. The respondent opposes the
.;t 2011:DHC:6756 "a petition on the ground that the obligation of the respondent under the contract stood discharged as force majeure conditions existed and, consequently, the respondent was not obliged to supply the equipment in question. According to the respondent, there were strikes in the
State of Maharashtra, from where the supplies had to be made. lt is argued that since force majeure conditions existed, even the arbitration agreement cannot be invoked.
On the other hand, the submission of learned counsel for the petitioner is that the petitioner has never accepted the respondent's reliance placed on the force majeure clause. Reference has been made to the letter dated I1.02.2010 issued by the petitioner, which records that the respondent was not able to supply the equipment on account of its financial crisis. Reference is also made to the petitioner's communication dated 13,04.2010, whereby the petitioner extended the delivery period and even released the balance payment against the purchase order, which was accepted by the respondent.
The issue as to whether or not force majeure conditions existed and if so, the impact of such developments on the mutual rights & obligations of the parties, is an issue which would squarely fall for the determination of the Arbitral Tribunal. Merely because, according to the respondent, force majeure conditions existed, it cannot be said that the petitioner is not entitled to seek the determination of the said issue itself in arbitration. The said issue is an issue of fact which only
/ t the Arbitral Tribunal is competent to deal with.
Accordingly, this petition is allowed. I appoint Mr. Justice R.C.
Lahoti, Retired Chief Justice of India, as the Sole Arbitrator to adjudicate the claims & counter-claims of the parties. lt is agreed that the fees of the learned Arbitrator shall be paid under the schedule of fees fixed under the rules of Delhi High Court Arbitration Centre.
The petition stands disPosed of.
AUGUST L2,?OLL ,BSR' -\ I
JUDGMENT