JAKSON POWER PVT LTD. v. VIKRAM SOLAR PVT. LTD.

1. The present petition has been filed by petitioner seeking appointment of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act, 1996.

2. Petitioner, a private limited company, with the object of installing, establishing, developing, commissioning and maintaining two Solar Power Plants, each of 10 MW(AC) capacity [as awarded under PPA with NTPC Vidyut Vyapar Nigam (NVVN)] entered into an agreement with the respondent to purchase Solar Photo Voltaic modules under Special Purchase Agreement dated 06.08.2012. As per the agreement, respondent undertook 2021:DHC:2911 to sell, supply and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013.

3. As per the version of petitioner, he informed the respondent that his products are sub-standard quality and they are not even generating minimum guaranteed output wattage. Petitioner also engaged an independent firm “PV Diagnostics” to inspect the specification and condition of the respondent’s modules whereby as per its report dated 05.07.2018 confirmed that respondent’s modules are defective, show full compound, partial cracks, snail trail and bus bar corrosion in several places. The report of the PV Diagnostics was supplied to the respondent in the month of September 2018.

4. It is submitted that in response to the complaints of the petitioner, respondent conducted various site inspections but failed to repair the defective modules or replace them, which has resulted in petitioner being unable to achieve the minimum guaranteed power output which causes financial losses to the petitioner.

5. Counsel for the petitioner submits that in such circumstances, petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Further submitted that petitioner called upon the respondent to rectify their breaches and replace the faulty modules within a period of two weeks of the receipt of the notice. However, respondent sent a reply dated 13.05.2020 wherein refuted allegations alleged by the petitioner and stated that the reason for low performance was mishandling and mismanagement at the hands of the petitioner.

6. Thereafter, petitioner sent notice dated 05.08.2020 invoking arbitration as per Clause 14 of the Agreement, read with section 21 of the Arbitration and Conciliation Act, 1996 and nominated its Arbitrator, to which no response has been given by the respondent till date.

7. During the course of hearing, learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties.

8. During the pendency of the present petition, parties tried to settle their disputes out of the court, however, could not reach to some conclusion.

9. Accordingly, Justice (Retd.) A.K. Sikri (Mobile: 9818000300), former Judge of the Hon’ble Supreme Court, is appointed as the sole Arbitrator to adjudicate the dispute between the parties.

10. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996.

11. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration.

12. With aforesaid directions, the present petition is, accordingly, disposed of.

JUDGE SEPTEMBER 17, 2021 ab