fourthDIMENSIONSOLUTIONSLIMITED v. RICOHINDIA LIMITED

2. The petitioner has filed the present petitions under section 14 ofthe Arbitration and Conciliation Act, 1996 (hereafter 'the Act'), mter alia, praying for substitution ofthe arbitrators appointed bythe respondent. The prayers madeinthese petitionsareidentically worded andread as under:- "a) Pass an orderforappointmentofan Arbitratorpreferably a retired High Court Judge to act as a sole Arbitrator to adjudicate allthefive(5)differentdisputesinthefive(5) different contracts between the Petitioner and the Respondent; b) The costofthe petition may be kindly awarded in favour ofthe Petitioner;"

3. Concededly,the petitioner and the respondent have entered into five different agreements(hereafter 'the Five Agreements')for implementation ' offive different projects. The four agreements(which are subject matter of the above petitions except O.M.P. (T)(COMM.) 27/2018) have an identically worded arbitration clause thatreads as under:- '1 '15. Governing Laws&Jurisdiction The formation, validity, interpretation, execution temimation ofand settlement ofdisputes and differences under fois Purchase Order and any all claims arising directly or indirectlyfrom the relationship between Ricoh and the Supplier (^ch dispute, difference or claim hereafter referred to as Dispute)shall begoverned bythelawsofIndia. All disputes shall be firsttried to be resolved through good faith discussion. In the event a Dispute is not resolved within 15(fifteen)days the such Dispute shall be referred to binding arbitration! Arbitration and Conciliation Act,1996. The arbitration shall be conduct^ m English languageand the place ofarbitration shall be New Delhi.

4. The learned counsel appearing for the parties also point out that in O.M.P.(T)(COMM.)27/2018, the disputes have arisen in respect ofa Service Agreementdated 28.06.2016,which contains an arbitration clause, that reads as under:- "1111 Dispute settlement: Any dispute,controversy or claim or dirference ofany kind whatsoever arising between the FDS and Ricoh,outoforin relation to this agreementor anyrelated agreement or other document or the validity, interpretation breach or tennination thereof ("Dispute"), including claims shall be redressed or settled amicably by both the Parties forough discussion. Any dispute that is not thus resolved, including any questions regarding its existence, shall be submitted to binding arbitration underthe arbitration provisions ofIndian Arbitration and Conciliation Act, 1996 and the rules framed thereunder and to be conducted by sole Arbitrator appointed mutually amongst the parties. Venue of Arbitration shall be New Delhi. The language of Arbitration will be English. The Court of New Delhi shall have jurisdiction with respectto Arbitration or any other dispute" j >. In view of the disputes that have arisen between the parties, the petitioner sent letters dated 11.09.2017(five-in-number)seeking resolution ofthe said disputes.Thereafter,the petitionersentanotice dated 02.02.2018 invoking the arbitration clause in each of the Five Agreements. The petitioner also proposed the name of an arbitrator to be appointed. The allegations made in the said notice were disputed by the respondent by a letter dated 03.03.2018. The respondent also disputed that in terms ofthe arbitration clause,anarbitratorcould besuggested bythepetitioner.

6. The respondent has, thereafter, proceeded to appoint arbitrators in respect ofeach ofthe Five Agreements. The grievance ofthe petitioner is, thatthe appointmentoffive different arbitrators-one in respectofeach of theFive Agreements-would notbe costeffective and would also delaythe proceedings.

7. Mr Wadhwa, learned Senior Counsel for the petitioner had also contended that there was an implied agreement between the parties that a Sole Arbitrator would be appointed to adjudicate the disputes in respect of all the Five Agreements, as they were entered into pursuant to a master agreementdated03.02.2015(hereafter'the Master Agreement'). )

8. Before proceeding fiirther,it would be relevantto referto Section 14 ofthe Act,which reads as under "14. Failure or impossibility to act.—(l)The mandate ofan arbitrator shall terminate and he shall be substituted by another arbitrator,if— (a)he becomes dejure or de facto unable to perform his functions or for other reasons fails to act without undue delay;and V (b)he withdraws from his office or the parties agree to the termination ofhis mandate. (2)If a controversy remains concerning any of the grounds referred to in clause(a)ofsub-section(1),a party may,unless otherwise agreed by the parties,apply to the Courtto decide on the termination ofthe mandate. (3)If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination ofthe mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section(3)ofsection 12."

9. Itis apparentfrom the plain reading ofSection 14(1)thatthe question of terminating the mandate of an arbitrator would arise only if(i) the arbitrator becomesdejure ordefacto unableto perform hisfunctions;or(ii) he fails to act withoutundue delay;or(iii)thathe withdrawsfrom his office;' or(iv)the parties agree to the termination of his mandate. In the present case, there is no dispute that the arbitrators are not de facto unable to perform their functions. Further, none of the arbitrators have withdrawn from the office nor have the parties have agreed to termination of their mandate.

10. Mr Wadhwa,the learned Senior Counsel appearing for the petitioner seeks to place the case ofthe petitioner(although not so articulated in the petitions) on the ground that the Arbitrators are dejure unable to perform the functions.He submits thatthis is so as there is an implied agreementthat only one single arbitrator would be appointed to adjudicate the disputes arising out of all the five Agreements. According to Mr Wadhwa, this implied agreement can be discerned from the fact that the parties had Y entered into the Master Agreement and the arbitration clauses in the Five Agreementsin question are identically worded.

11. The aforesaid contention is wholly bereft of any merit. A plain reading of the notices issued by the petitioner, as well as the Five Agreements, clearly indicates that there are five different contracts for five different projects.This is also the express averment bythe petitioner in each ofthe present petitions.Paragraph 4 ofeach ofthe present petitions, which is identically worded,reads as under:- "4. The Petitioner and the Respondent executed Five (5) different contracts for implementation of five (5) different projects.Each ofthe Five(5)different contracts has identical Arbitration Clause."

12. The contention that all the Five Agreements have identically worded arbitration clause is also incorrect. In the Service Agreement dated 28.06.2016, which is the subject Agreement under O.M.P.(T)(COMM.), 27/2018, the arbitration clause is worded differently. The learned counsel appearing for the respondent has also pointed out that the notices dated 11.09.2017 issued by the petitioner also sought invoking the dispute resolution mechanism under Clause 11.11 ofthe said Service Agreement.

13. A perusal ofthe petition also indicates that contentions advanced by Mr Wadhwa are not supported by the pleadings; there is no averment to the effect that there is any implied agreement between the parties for referring the disputes relating to all the five Agreements to a single arbitrator. The ) only relevant averment made in the petition is that the petitioner believed that a single arbitrator would be appointed to adjudicate the disputes arising e from all the Five Agreements.

12. In view of the above, the present petitions are unmerited and, accordingly,dismissed.

VIBHU BAKHRU,J APRIL 09,20I8/MK