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HIGH COURT OF DELHI
CS(COMM) 147/2016
M/S NANDINIIMPEX (PVT) LTD Plaintiff
Through Mr. R.K. Pandey, Advocate
CS(COMM) 147/2016
M/S NANDINIIMPEX (PVT) LTD Plaintiff
Through Mr. R.K. Pandey, Advocate
VERSUS
M/S KAZSTROY SERVICE INFRASTRUCTURE INDIA PVT LTD &
OTHERS Defendants ^ Through Mr. Vinod Wadhwa, Advocate for defendant no. 1.
OTHERS Defendants ^ Through Mr. Vinod Wadhwa, Advocate for defendant no. 1.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
06.10.2016
06.10.2016
I.A.12544/2016(deletion of defendants no.3 & 4)
This is an application filed by the plaintiff seeking deletion of defendants no.3 and 4 from the array of parties. Prayer made in this application is allowed.
Defendants no.3 and 4 are deleted from the array of parties. Plaintiff to file
^ amended memo ofparties.
The applicationstands disposed of.
This is an application filed by the plaintiff seeking deletion of defendants no.3 and 4 from the array of parties. Prayer made in this application is allowed.
Defendants no.3 and 4 are deleted from the array of parties. Plaintiff to file
^ amended memo ofparties.
The applicationstands disposed of.
I.A.5263/2016(under Section 8 of the Arbitration & Conciliation Act bv defendant no.ll
This is an application under Section 8 of the Arbitration & Conciliation
Act, 1996 filed by defendant no.l with the prayer that subject matter of the present suit is covered by the Arbitration Clause and thus the disputes between the parties be referred to an Arbitrator. The. counsel relies on para 5(k) ofplaint, whichreads as under in support of his submission:
"5. k) That the plaintiff and the respondent company have agreed under assigned work orders in terms of Clause
41(b) Dispute Mechanism that stands "....In case the amicable
2016:DHC:8475 resolution or settlement is not reached between the parties within aperiod of30 daysfrom the day on which the dispute(s) or difference(s) arose, such dispute(s) or difference(s) shall be referred to a sole Arbitrator for settlement by way of arbitration in accordance with theprovisions oftheArbitration and ConciliationAct 1996 or any applicable law on arbitration that may be inforce then, and any amendments made thereto.
The sole arbitrator shall be appointed by the mutual consent of both theparties. The decision of the Arbitrator shall befinal and binding on both theparties. The venue ofsuch arbitration shall be at New Delhi. The Language of the arbitration proceeding shall be in English... " That the plaintiffhad written f"" aletter to respondent company "for appointment ofArbitrator" vide on dated 11.05.2015 and request before respondent company, against outstanding dues for an amount of
Rs.2,59,08,466/-, Rs.2,23,13,270/- and Rs. 1,31,79,533/- which were acknowledged by respondent company but despite of repeated reminders, the respondent company has failed to amicably settle the outstanding dues. That the respondent company neither sent any reply of letter dated 11.05.2015 nor any assured response or communications with plaintiff company till date...."
Notice. Counsel for the plaintiff accepts notice. He submits that the
^ present application is yet another attempt on the part ofthe defendant to delay the matter as initially the plaintiff had called upon the defendant to resolve the matter through arbitration, but the defendant did not respond. He submits that the plaintiffwould have no objection ifan independent Arbitrator is appointed to decide the disputes and differences, claims and counter claims between the parties subject matter ofthe present suit. Plaintiffdoes not dispute the factum of the Arbitration Clause.
Mr. Ajay Kapur, Senior Advocate, (Mobile No.9811054049) isappointed as a sole Arbitrator. The fee of the Arbitrator would be shared equally between the parties, which will be added inthe cost atthe time ofthe final disposal. Fee shall be payable as per the Fee Schedule of the Delhi International Arbitration
Centre(DAC). The Arbitrator be informed accordingly.
Plaintiff will be entitled to refund of court fee. Necessary certificate be issued to this effect.
The application stands disposed of.
This is an application under Section 8 of the Arbitration & Conciliation
Act, 1996 filed by defendant no.l with the prayer that subject matter of the present suit is covered by the Arbitration Clause and thus the disputes between the parties be referred to an Arbitrator. The. counsel relies on para 5(k) ofplaint, whichreads as under in support of his submission:
"5. k) That the plaintiff and the respondent company have agreed under assigned work orders in terms of Clause
41(b) Dispute Mechanism that stands "....In case the amicable
2016:DHC:8475 resolution or settlement is not reached between the parties within aperiod of30 daysfrom the day on which the dispute(s) or difference(s) arose, such dispute(s) or difference(s) shall be referred to a sole Arbitrator for settlement by way of arbitration in accordance with theprovisions oftheArbitration and ConciliationAct 1996 or any applicable law on arbitration that may be inforce then, and any amendments made thereto.
The sole arbitrator shall be appointed by the mutual consent of both theparties. The decision of the Arbitrator shall befinal and binding on both theparties. The venue ofsuch arbitration shall be at New Delhi. The Language of the arbitration proceeding shall be in English... " That the plaintiffhad written f"" aletter to respondent company "for appointment ofArbitrator" vide on dated 11.05.2015 and request before respondent company, against outstanding dues for an amount of
Rs.2,59,08,466/-, Rs.2,23,13,270/- and Rs. 1,31,79,533/- which were acknowledged by respondent company but despite of repeated reminders, the respondent company has failed to amicably settle the outstanding dues. That the respondent company neither sent any reply of letter dated 11.05.2015 nor any assured response or communications with plaintiff company till date...."
Notice. Counsel for the plaintiff accepts notice. He submits that the
^ present application is yet another attempt on the part ofthe defendant to delay the matter as initially the plaintiff had called upon the defendant to resolve the matter through arbitration, but the defendant did not respond. He submits that the plaintiffwould have no objection ifan independent Arbitrator is appointed to decide the disputes and differences, claims and counter claims between the parties subject matter ofthe present suit. Plaintiffdoes not dispute the factum of the Arbitration Clause.
Mr. Ajay Kapur, Senior Advocate, (Mobile No.9811054049) isappointed as a sole Arbitrator. The fee of the Arbitrator would be shared equally between the parties, which will be added inthe cost atthe time ofthe final disposal. Fee shall be payable as per the Fee Schedule of the Delhi International Arbitration
Centre(DAC). The Arbitrator be informed accordingly.
Plaintiff will be entitled to refund of court fee. Necessary certificate be issued to this effect.
The application stands disposed of.
CS(COMM) 147/2016
In view of the Arbitrator having been appointed, the suit stands disposed of.
-r.
G.S.SISTANI, J OCTOBER 06, 2016 pst
In view of the Arbitrator having been appointed, the suit stands disposed of.
-r.
G.S.SISTANI, J OCTOBER 06, 2016 pst
CS(COMM)147/2016 3/3
JUDGMENT