Full Text
ARB.P. 1209/2021
CASE NEW HOLLAND CONSTRUCTION EQUIPMENT(INDIA)
PRIVATE LIMITED Petitioner
Through: Mr.Shashank Garg,Adv.with Ms.Muskaan Gopal& Ms.Nishtha
Jain,Advs.
M/S.PLANMAN HR PVT.LTD.
Through:
Respondent A
CNHINDUSTRIAL CAPITAL(INDtA)
PRIVATE LIMITED Petitioner Jain, Advs.
Through:
CNHINDUSTRIAL(INDIA)PRIVATE LIMITED .... Petitioner
Jain, Advs.
2022:DHC:6035 o o
08.09.2022
ORDER
1. The above three petitions have beien filed by the same petitioner against one common respondent with almost identical facts and similar prayer and as such being disposed ofby this common order. The facts and the issues ofeach ofthe petitions shall be narrated separately. ARB.P. 1209/2021
2. On the last date of hearing, the respondent was directed to be served through publication.
3. An affidavit of service has been filed wherein, it is stated, that the service by substituted mode was effected by publication in an English newspaper "The Statesman", Delhi edition and in a Hindi newspaper "Jansatta" Delhi edition on August 27, 2022. Despite service there is no appearance for the respondent. I accordingly proceed to decide the petition.
4. It is submitted by learned counsel for the petitioner that the present petition has been filed seeking appointment ofan Arbitrator to adjudicate the subsisting dispute arising out ofthe purchase orders dated June 01,2018 and August 01, 2018 for non payment of outstanding dues amounting to ?16,25,898/-. In terms ofthe purchase orders,the respondent was to provide manpower to the petitioner. The petitioner received invoices for the month ofMarch,2019 for the services rendered by the respondent. o o
5. In March, 2019, a former employee of the respondent presently employed by the petitioner met with an accident and made a claim for expenses incurred by him of ^2,00,000/- which was then disbursed by the agency but not paid to the employee by the respondent. The respondent had also failed to process the salary for the manpower supplied and requested the petitioner to process the salary of the employees. She states that the respondent had undertaken to reimburse'the petitioner, the amount of the salary paid by the petitioner to the employees. The petitioner also requested the respondent to start reconciliation proceedings and also to share PF challans. However, no reply is received. According to her, an amount of ?15,82,230/- was paid by the petitioner under different heads in furtherance to the invoices received.
6. She has also drawn my attention to the demand notice dated December 09, 2020 sent by the petitioner to the respondent namely M/s. Planman HR Pvt. Ltd., which returned back unserved. She states that an email was sent to the respondent on July 09, 2021 along with three attachments including the demand notice dated December 09, 2020 as sent by the petitioner but no response has been received to the said e-mail.
7. She draws my attention to the arbitration clause in the purchase orders,which I reproduce as under;- "29. ARBITRATION:In the event ofany disputes or questions and the failure of the Dispute Resolution process as per the Clause 27 ofthe Purchase Order, the dispute shall be referred to the arbitration by sole Arbitrator, who shall be appointed by the Purchaser to this Purchase Order. The Arbitration shall be held at New Delhi, in accordance with the subject to the provisions ofthe Arbitration and Conciliation- Act, 1996or any statutory modifications or re-enactrhent thereoffor the time o being in force. The cost ofthe Arbitration shall be borne by equally by both the Parties. The Arbitration Award shall be binding on both the Parties andshall be in English Language." ARB.P.1210/2021
8. On the last date of hearing, the respondent was directed to be served
9. An affidavit of service has been filed wherein, it is stated that the service by substituted mode was effeicted by publication in an English newspaper "The Statesman", Delhi edition on August 27, 2022 and in a Hindi newspaper "Jansatta" Delhi edition on August 27, 2022. Despite service, there is no appearance for the respondent. I accordingly proceed to decide the petition.
10. The petition has been filed seeking appointment of an Arbitrator for adjudication of dispute said to have arisen between the parties in terms of the two agreements, namely Services Agreement and Reimbursement Agreement dated February 07,2019.
11. As per the said agreements, the respondent was to supply manpower for which respondent was to be reimbursed. The grievance ofthe petitioner primarily is regarding the non payment ofthe outstanding dues amounting to ^ ?11,55,275/-tothe petitioner. In furtherancetothe invoicesreceived bythe petitioner it paid an amount of ^15,08,480/- and the same has been acknowledged by the respondent vide undertaking dated April 06, 2019. The respondent failed to process the salary for the manpower supplied and hence requested the petitioner to process the salary for the employees vide mail dated April 04,2019. The respondent,vide e-mail dated April 06,2019 assured the petitioner that it would reimburse the amount. However, the o o respondent has failed to reimburse the amount. Despite repeated e-mails of the petitioner,no reply has been received from the respondent.
12. The learned counsel for the petitioner also states, as the demand notice dated December 09, 2020 sent by the petitioner to the respondent returned back unserved resulting in the petitioner sending an e-mail on July 09, 2021 along with attachments including the demand notice dated December 09,2020 but no response has been received.
13. Learned counsel for the petitioner has drawn my attention to the arbitration clauses, i.e.. Clause 33 in the Service Agreement and Clause 32 in Reimbursement Agreement. Being para materia, I reproduce as under Clause 33 ofthe service agreement;- "33.
ARBITRATION 33.[1] Any and all disputes, controversies and conflicts ('Disputes')arising out ofthis Agreement between theparties or arising out of or relating to or in connection with this Agreement or theperformance or non-performance ofthe rights and obligations set forth herein or the breach, termination, invalidity or interpretation thereof shall be referred for arbitration in terms of the Arbitration and Conciliation Act, 1996 or any amendments thereofThe place ofArbitration shall be Delhi and the language used in the arbitral proceedings shall be English. Arbitration shall be conducted by a sole arbitrator. 33.[2] The sole arbitrator shall be appointed mutually by CNHICIPL and Contractor, and the Sole Arbitrator shall be a person not below the rank ofRetiredJudge. 33.[3] The arbitral award shall be in writing and shall befinal and binding on each party andshall be enforceable in any court ofcompetentjurisdiction. None ofthe Parties shall be entitled to commence or maintain any action in court oflaw upon any Dispute arising out ofor relating to or in connection with this o Agreement (Infringement of IPR excepted) except for the enforcement of the arbitral award or as permitted under the Arbitration and Conciliation Act, 1996. 33.[4] Pending the submission to arbitration and thereafter, till the tribunal renders its award or decision, the parties shall, except in the event oftermination ofthis Agreement or in the event of any interim order/award is granted under the aforestatedAct, continue toperform their obligations under this Agreement." ARB.P.1211/2021
14. On the last date ofhearing,the respondent was directed to be served
15. An affidavit of service has been filed wherein, it is stated that the service by substituted mode was effected by publication in an English newspaper "The Statesman", Delhi edition and in a Hindi newspaper "Jansatta" Delhi edition on August 27, 2022. Despite service, no one is present for the respondent.I accordingly proceed to decide the petition.
16. The petition has been filed seeking appointment of an Arbitrator for adjudication ofthe dispute, said to have arisen between the parties in terms of the two agreements namely Services Agreement and Reimbursement Agreement dated December 01,2018. ^ 17. As per the said agreements,the respondent was to supply manpower for which the respondent was to be reimbursed. The grievance of the petitioner is with regard to non payment ofthe outstanding dues amounting to ?1,07,03,648/- to the petitioner. In furtherance to the invoices received by the petitioner, it paid an amount of?92,90,914/- and the same has been acknowledged by the respondent vide undertaking dated April 06, 2019. The respondent failed to process the salary of the manpower supplied and rP o hence requested the petitioner to process the salary of the employees vide mail dated April 04,2019. The respondent,vide e-mail dated April 06,2019 assured the petitioner that it would reimburse the amount. However, the respondent has since failed to do so. Despite repeated e-mails of the petitioner,no reply has been received from the respondent.
18. Learned counsel for the petitioner states, as the demand notice dated December 09, 2020 sent by the petitioner to the respondent returned back unserved resulting in the petitioner sending an e-mail on July 09,2021 along with attachments including the demand notice dated December 09,2020 but no response has been received.
19. Learned counsel for the petitioner has drawn my attention to the arbitration Clause 33 in the Service Agreement and Clause 32 in Reimbursement Agreement. Being para mateia I reproduce as under clause 33 ofthe service agreement:- "33.
ARBITRATION 33.[1] Any and all disputes, controversies and conflicts ('Disputes')arising out ofthis Agreement between theparties or arising out of or relating to or in connection with this Agreement or theperformance or nOn-performance ofthe rights and obligations set forth herein Or the breach, termination, invalidity or interpretation thereof shall be referred for arbitration in terms of the Arbitration and Conciliation Act, (3 1996or any amendments thereofTheplace ofArbitration shall be Delhi and the language used in the arbitral proceedings shall be English. Arbitration shall be conducted by a sole arbitrator. 33.[2] The sole arbitrator shall be appointed mutually by CNHICIPL and Contractor, and the Sole Arbitrator shall be a person not below the rankofRetiredJudge. IS o o 33.[3] The arbitral award shall be in writing and shall befinal and binding on each party andshall be enforceable in any court ofcompetentjurisdiction. None ofthe Parties shall be entitled to commence or maintain any action in court oflaw upon any Dispute arising out ofor relating to or in connection with this Agreement (Infringement of IPR excepted) except for the enforcement of the arbitral award or as permitted under the Arbitration and Conciliation Act,1996. 33.[4] Pending the submission to arbitration and thereafter, till the tribunal renders its award or decision, the parties shall, except in the event oftermination ofthis Agreement or in the event of any interim order/award is granted under the aforestated Act, continue toperform their obligations under this Agreement."
20. Noting the facts and the submissions made, it is clear that disputes have arisen between the parties in these petitions and they have to be relegated to arbitration process by appointing an Arbitrator, who shall adjudicate the disputes between them. Accordingly, as requested by the counsel for the petitioner, for a common Arbitrator in all the petitions, this Court appoints Mr. Amarnath,Retired District and Sessions Judge,Delhi as the Sole Arbitrator (Mobile No. 9958697030) who shall adjudicate the disputes between the parties in the above petitions through claims and counter-claims,ifany.
21. The fee of the learned Arbitrator shall be regulated in terms of the Fourth Schedule ofthe Arbitration and Conciliation Act, 1996 in each case.
22. He shall give his disclosure under Section 12 ofthe Act.
23. All the pleas ofthe parties, both on facts and in law are left open to be decided by the learned Arbitrator. o o
24. A copy of this order shall be sent to the learned Arbitrator through WhatsApp.
25. The petitions stand disposed of. No costs.
SEPTEMBER 8,2022/ak V.KAMESWAR RAO,J