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f // HIGH COURT OF DELHI
ARB.P. 56/2015
M/S KALPATARU POWER TRANSMISSION LTD Petitioner
Through Dr.Sunil Mittal, Adv. with Mr.Kumar Vivek Vibhu, Adv.
ARB.P. 56/2015
M/S KALPATARU POWER TRANSMISSION LTD Petitioner
Through Dr.Sunil Mittal, Adv. with Mr.Kumar Vivek Vibhu, Adv.
VERSUS
M/S RISHI INFRA PROJECTS PVT LTD AND OTHERS Respondents
Through None
Through None
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
ORDER o/o 18.04.2016 Learned counsel for the petitioner admits that respondents No.2 &3, who are the Directors ofrespondent No.l, are not parties to the agreement.
Upon instructions, he has made the statement that the petitioner has no objection if their names be deleted from the array of the parties. He is allowed to file the amended memo ofparties within one week.
The respondent-Company is served through publication. No one appears on its behalf; even reply was not filed. Under these circumstances, the matter isbeing proceeded further inits absence.
Brief facts are that on 23^^^ March, 2011, the Eastern Railway issued
Letter of Acceptance to M/s. KPTL-JMC-Yadav (Joint Venture) bearing
Ref. No.CAO/Con/WT/8677 for construction work between Baruipara to
Chandanpur. The Joint Venture was formally entered at New Delhi vide
Supplementary Agreement dated 25^*^ March, 2011 among the petitioner.
2016:DHC:8306 JMC and Yadav. As per the said Joint Venture, the petitioner was made lead partner. The Joint Venture through Execution Agreement dated 30^^
March, 2011 delegated powerup to the petitioner-Company to ensure timely and successful completion of the project. On the same date, the petitioner entered into executionagreement with the respondent wherebythe petitioner sub-contracted the entire project as per terms and conditions agreed.
It is submitted that in between April, 2011 to August, 2011, the petitioner made advances to the respondent-Company totalling to Rs.44
Lakhs as per clause 9 of the execution agreement. Thepetitioner due to non-
^ completion of the project by the respondent-Company by notice dated 6^^
June, 2012 called upon it to return Rs.37.93 Lakhs after deducting Rs.6.07
Lakhs, the value for the work done. Thereafter, on 3'^'' September, 2012, the petitioner's counsel issued legal notice to the respondent demanding
Rs.37.93 Lakhs with interest. On 29''" July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded
Rs.3.60 Crore from the petitioner. The respondent also proposed the name of Sh.G.P.Thareja (Retired District & Sessions Judge) as an arbitrator. On
23'"'' August, 2013, the petitioner replied to the said notice, stating that the
Arbitrator's name as suggested by the respondent was not as per clause 23 of the Execution Agreement being the lead partner and proposed the name of
Hon'ble Mr. Justice C.K.Thakkar, FormerJudgethe Supreme Courtof India.
On 20'^ February, 2014, the petitioner invoked the arbitration clause as per clause 23 of the execution agreement appointing Hon'ble Mr. Justice C.K.Thakkar, Former Judge ofthe Supreme Court and requiring respondent to give consent within 30 days ofthe receipt ofthe notice. On 12 March, 2014, the petitioner again sent the arbitration notice to the respondent f f reiterating contents in the previous notice but to no response. Hence, the present petition has been filed by the petitioner under Section 11 of the
Arbitration and Conciliation Act, 1996 for appointment of asole Arbitrator for reference and adjudication of the disputes that have arisen between the parties.
For the reasons stated in the petition coupled with the documents placed on the record, the prayer made in the petition is allowed. These are five petitions. The parties are same in all sets of disputes, thus, it is appropriate that single sole Arbitrator is to be appointed, in order to save time, cost and to avoid conflicting findings.
Accordingly, Mr. Justice S.S. Nijjar, Retired Judge ofSupreme Court
(Mobile No.9560453535) is appointed as sole Arbitrator to adjudicate the disputes arising between the parties as mentioned in the present petition as well as four other petitions. The parties are also allowed to file their respective claims and counter-claims before the Arbitrator.
The Arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation (Amendment) Act, 2015 before commencing the arbitration. The fees of the learned Arbitrator shall be mterms of the schedule under the amended Act. The parties to appear before the Centre on
20^*" May, 2016 at 5.00 pm for directions.
The petition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel for the parties and acopy thereof be communicated to the learned Arbitrator forthwith.
APRIL 18, 2016 $-47.
HIGH COURT OF DELHI
ARB.P.56/2015
KALPATARU POWER TRANSMISSION LTD Petitioner
Through: Mr.Ashish Dholakia,Ms.Anu Tiwari, Mr. Sunil Mittal & Mr. D.Kishore Kumar, Advocates.
ORDER o/o 18.04.2016 Learned counsel for the petitioner admits that respondents No.2 &3, who are the Directors ofrespondent No.l, are not parties to the agreement.
Upon instructions, he has made the statement that the petitioner has no objection if their names be deleted from the array of the parties. He is allowed to file the amended memo ofparties within one week.
The respondent-Company is served through publication. No one appears on its behalf; even reply was not filed. Under these circumstances, the matter isbeing proceeded further inits absence.
Brief facts are that on 23^^^ March, 2011, the Eastern Railway issued
Letter of Acceptance to M/s. KPTL-JMC-Yadav (Joint Venture) bearing
Ref. No.CAO/Con/WT/8677 for construction work between Baruipara to
Chandanpur. The Joint Venture was formally entered at New Delhi vide
Supplementary Agreement dated 25^*^ March, 2011 among the petitioner.
2016:DHC:8306 JMC and Yadav. As per the said Joint Venture, the petitioner was made lead partner. The Joint Venture through Execution Agreement dated 30^^
March, 2011 delegated powerup to the petitioner-Company to ensure timely and successful completion of the project. On the same date, the petitioner entered into executionagreement with the respondent wherebythe petitioner sub-contracted the entire project as per terms and conditions agreed.
It is submitted that in between April, 2011 to August, 2011, the petitioner made advances to the respondent-Company totalling to Rs.44
Lakhs as per clause 9 of the execution agreement. Thepetitioner due to non-
^ completion of the project by the respondent-Company by notice dated 6^^
June, 2012 called upon it to return Rs.37.93 Lakhs after deducting Rs.6.07
Lakhs, the value for the work done. Thereafter, on 3'^'' September, 2012, the petitioner's counsel issued legal notice to the respondent demanding
Rs.37.93 Lakhs with interest. On 29''" July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded
Rs.3.60 Crore from the petitioner. The respondent also proposed the name of Sh.G.P.Thareja (Retired District & Sessions Judge) as an arbitrator. On
23'"'' August, 2013, the petitioner replied to the said notice, stating that the
Arbitrator's name as suggested by the respondent was not as per clause 23 of the Execution Agreement being the lead partner and proposed the name of
Hon'ble Mr. Justice C.K.Thakkar, FormerJudgethe Supreme Courtof India.
On 20'^ February, 2014, the petitioner invoked the arbitration clause as per clause 23 of the execution agreement appointing Hon'ble Mr. Justice C.K.Thakkar, Former Judge ofthe Supreme Court and requiring respondent to give consent within 30 days ofthe receipt ofthe notice. On 12 March, 2014, the petitioner again sent the arbitration notice to the respondent f f reiterating contents in the previous notice but to no response. Hence, the present petition has been filed by the petitioner under Section 11 of the
Arbitration and Conciliation Act, 1996 for appointment of asole Arbitrator for reference and adjudication of the disputes that have arisen between the parties.
For the reasons stated in the petition coupled with the documents placed on the record, the prayer made in the petition is allowed. These are five petitions. The parties are same in all sets of disputes, thus, it is appropriate that single sole Arbitrator is to be appointed, in order to save time, cost and to avoid conflicting findings.
Accordingly, Mr. Justice S.S. Nijjar, Retired Judge ofSupreme Court
(Mobile No.9560453535) is appointed as sole Arbitrator to adjudicate the disputes arising between the parties as mentioned in the present petition as well as four other petitions. The parties are also allowed to file their respective claims and counter-claims before the Arbitrator.
The Arbitrator shall ensure the compliance of the provisions of
Arbitration and Conciliation (Amendment) Act, 2015 before commencing the arbitration. The fees of the learned Arbitrator shall be mterms of the schedule under the amended Act. The parties to appear before the Centre on
20^*" May, 2016 at 5.00 pm for directions.
The petition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel for the parties and acopy thereof be communicated to the learned Arbitrator forthwith.
APRIL 18, 2016 $-47.
HIGH COURT OF DELHI
ARB.P.56/2015
KALPATARU POWER TRANSMISSION LTD Petitioner
Through: Mr.Ashish Dholakia,Ms.Anu Tiwari, Mr. Sunil Mittal & Mr. D.Kishore Kumar, Advocates.
VERSUS
RISHIINFRA PROJECTSPVT LTD AND ORS. Respondents
CORAM:JUSTICE S.MURALIDHAR
ORDER o/o 26.09.2016 1.On 18^'^ April2016this Courthad passed the following ex parte order:
Learned counsel for the petitioner admits that respondents No.2 &3, who are the Directors of respondent No. 1, are not parties to the agreement. Upon instructions, he has made the statementthat the petitioner has no objection iftheir names be deleted from the array ofthe parties. He is allowed to file the amended memo of parties within one week.
The respondent-Company is served through publication.
No one appears on its behalf; even reply was not filed.
Under these circumstances,the matter is being proceeded further in its absence.
Brief facts are that on 23'^'' March, 2011, the Eastern
Railway issued Letter of Acceptance to M/s. KPTL-
JMC-Yadav (Joint Venture) bearing Ref.
No.CAO/Con/WT/8677 for construction work between
Baruipara to Chandanpur. The Joint Venture was formally entered at New Delhi vide Supplemental^
Arb.P. No.56/2015 Page I of4 Agreement dated 25"" March,2011 among the petitioner
JMC and Yadav. As per the said Joint Venture, the petitioner was made lead partner. The Joint Venture through Execution Agreement dated March, 2011 delegated power up to the petitioner-Company to ensure timely and successful completion ofthe project. On the same date, the petitioner entered into execution agreement with the respondent whereby the petitioner sub-contracted the entire project as per terms and conditions agreed.
It is submitted that in between April, 2011 to August, 2011, the petitioner made advances to the respondent-
Company totalling to Rs.44 Lakhs as per clause 9 ofthe execution agreement. The petitioner due to non- completion ofthe project by the respondent-Company by notice dated 6"" June, 2012 called upon it to return
Rs.37.93 Lakhs after deducting Rs.6.07 Lakhs,the value for the work done. Thereafter, on 3'^'' September, 2012, the petitioner's counsel issued legal notice to the respondent demanding Rs.37.93 Lakhs with interest. On
29"" July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded
Rs.3.60 Crore from the petitioner. The respondent also proposed the name ofSh.G.P.Thareja(Retired District &
Sessions Judge)as an arbitrator. On 23"^*^ August,2013, the petitioner replied to the said notice, stating that the
Arbitrator's name as suggested by the respondent was not as per clause 23 ofthe Execution Agreement being the lead partner and proposed the name of Hon'ble Mr. Justice C.K.Thakkar,Fonner Judge the Supreme Court of
India.
On 20"" February, 2014, the petitioner invoked the arbitration clause as per clause 23 of the execution agreement appointing Hon'ble Mr. Justice C.K.Thakkar, Former Judge of the Supreme Court and requiring respondent to give consent within 30 days ofthe receipt of the notice. On 12 March, 2014, the petitioner again sent the arbitration notice to the respondent reiterating
Arh.P. No.56/2015 Page2of4 (E) contents in the previous notice butto no response.Hence, the present petition has been filed by the petitioner under
Section 11 ofthe Arbitration and Conciliation Act, 1996 for appointment of a sole Arbitrator for reference and adjudication ofthe disputes that have arisen between the parties.
For the reasons stated in the petition coupled with the documents placed on the record, the prayer made in the petition is allowed. These are five petitions. The parties are same in all sets ofdisputes,thus,it is appropriate that single sole Arbitrator is to be appointed,in order to save time,cost and to avoid conflicting findings.
Accordingly, Mr. Justice S.S. Nijjar, Retired Judge of
Supreme Court(Mobile No.9560453535)is appointed as sole Arbitrator to adjudicate the disputes arising between the parties as mentioned in the present petition as well as four other petitions. The parties are also allowed to file their respective claims and counter-claims before the
Arbitrator.
The Arbitrator shall ensure the compliance of the provisions of Arbitration and Conciliation(Amendment)
Act,2015 before commencing the arbitration. The fees of the learned Arbitrator shall be in terms of the schedule under the amended Act. The parties to appear before the
Centre on 20'*"May,2016 at5.00 pm for directions.
The petition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel forthe parties and a copy thereofbe communicated to the learned Arbitrator forthwith."
Learned counsel for the petitioner admits that respondents No.2 &3, who are the Directors of respondent No. 1, are not parties to the agreement. Upon instructions, he has made the statementthat the petitioner has no objection iftheir names be deleted from the array ofthe parties. He is allowed to file the amended memo of parties within one week.
The respondent-Company is served through publication.
No one appears on its behalf; even reply was not filed.
Under these circumstances,the matter is being proceeded further in its absence.
Brief facts are that on 23'^'' March, 2011, the Eastern
Railway issued Letter of Acceptance to M/s. KPTL-
JMC-Yadav (Joint Venture) bearing Ref.
No.CAO/Con/WT/8677 for construction work between
Baruipara to Chandanpur. The Joint Venture was formally entered at New Delhi vide Supplemental^
Arb.P. No.56/2015 Page I of4 Agreement dated 25"" March,2011 among the petitioner
JMC and Yadav. As per the said Joint Venture, the petitioner was made lead partner. The Joint Venture through Execution Agreement dated March, 2011 delegated power up to the petitioner-Company to ensure timely and successful completion ofthe project. On the same date, the petitioner entered into execution agreement with the respondent whereby the petitioner sub-contracted the entire project as per terms and conditions agreed.
It is submitted that in between April, 2011 to August, 2011, the petitioner made advances to the respondent-
Company totalling to Rs.44 Lakhs as per clause 9 ofthe execution agreement. The petitioner due to non- completion ofthe project by the respondent-Company by notice dated 6"" June, 2012 called upon it to return
Rs.37.93 Lakhs after deducting Rs.6.07 Lakhs,the value for the work done. Thereafter, on 3'^'' September, 2012, the petitioner's counsel issued legal notice to the respondent demanding Rs.37.93 Lakhs with interest. On
29"" July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded
Rs.3.60 Crore from the petitioner. The respondent also proposed the name ofSh.G.P.Thareja(Retired District &
Sessions Judge)as an arbitrator. On 23"^*^ August,2013, the petitioner replied to the said notice, stating that the
Arbitrator's name as suggested by the respondent was not as per clause 23 ofthe Execution Agreement being the lead partner and proposed the name of Hon'ble Mr. Justice C.K.Thakkar,Fonner Judge the Supreme Court of
India.
On 20"" February, 2014, the petitioner invoked the arbitration clause as per clause 23 of the execution agreement appointing Hon'ble Mr. Justice C.K.Thakkar, Former Judge of the Supreme Court and requiring respondent to give consent within 30 days ofthe receipt of the notice. On 12 March, 2014, the petitioner again sent the arbitration notice to the respondent reiterating
Arh.P. No.56/2015 Page2of4 (E) contents in the previous notice butto no response.Hence, the present petition has been filed by the petitioner under
Section 11 ofthe Arbitration and Conciliation Act, 1996 for appointment of a sole Arbitrator for reference and adjudication ofthe disputes that have arisen between the parties.
For the reasons stated in the petition coupled with the documents placed on the record, the prayer made in the petition is allowed. These are five petitions. The parties are same in all sets ofdisputes,thus,it is appropriate that single sole Arbitrator is to be appointed,in order to save time,cost and to avoid conflicting findings.
Accordingly, Mr. Justice S.S. Nijjar, Retired Judge of
Supreme Court(Mobile No.9560453535)is appointed as sole Arbitrator to adjudicate the disputes arising between the parties as mentioned in the present petition as well as four other petitions. The parties are also allowed to file their respective claims and counter-claims before the
Arbitrator.
The Arbitrator shall ensure the compliance of the provisions of Arbitration and Conciliation(Amendment)
Act,2015 before commencing the arbitration. The fees of the learned Arbitrator shall be in terms of the schedule under the amended Act. The parties to appear before the
Centre on 20'*"May,2016 at5.00 pm for directions.
The petition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel forthe parties and a copy thereofbe communicated to the learned Arbitrator forthwith."
JUDGMENT
2. A letter dated 2C'September 2016 has been received from Mr. Justice Surinder Singh Nijjar stating that due to unavoidable circumstances he is unable to act as an Arbitrator in these matters in terms ofthe order dated Art.P.No.56/2015 ^"8^^ @ 18* April 2016 passed by this Court. It is seen that the initial appointment by this Court is also an exparte order.
3. The Court accordingly modifies the above order and appoints Mr.Justice K.S.P.Radhakrishnan,former Judge ofthe Supreme Court ofIndia(Mob. No.9560013636)as the sole Arbitrator to adjudicate the disputes between the parties including their claims and counter claims. It is clarified that it will be for the learned Arbitrator to decide whether the arbitration should take place underthe aegis ofthe Delhi International Arbitration Centre.
4. The learned Arbitrator is requested to endeavour to complete the arbitration within a period oftwelve months from the date he enters upon reference.
5. A certified copy of this order be delivered to the learned Arbitrator forthwith.
SEPTEMBER 26,2016 S. MURALIDHAR,J. b'nesh