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// $-3 HIGH COURT OF DELHI
ARB.P. 59/2015
M/S KALPATARU POWER TRANSMISSION LTD Petitioner
Through Dr.Sunil Mittal, Adv. with Mr.Kumar Vivek Vibhu, Adv.
ARB.P. 59/2015
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: f HON'BLE MR. JUSTICE MANMOHAN SINGH
18.04.2016 Learned counsel for the petitioner admits that respondents No.2 & 3, ' who are the Directors of respondent 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 of partieswithinone 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 itsabsence.
Brief facts are that on 2"'^ March, 2011, the South Eastern Railway issued Letter ofAcceptance along with rate sheet to M/s; KPTL-JMC-Yadav
(Joint Venture) bearing Ref. No.CE/CON/GRC/ER/3086/0828 for construction work between Deshpran to Nandigram. The Joint Venture was th formally entered at New Delhi vide Supplementary Agreement dated 15 March, 2011 among the petitioner, JMC and Yadav. As per the said Joint
2016:DHC:8310 I Venture, the petitioner was made lead partner. The Joint Venture through
Execution Agreement dated 30^*^ March, 2011 delegated power up to the petitioner-Company to ensure timely and successful completion of the project. On the same date, the petitioner entered into execution agreement with the respondent whereby the petitioner sub-contracted the entire project asperterms andconditions agreed.
It is submitted that in between May, 2011 to April, 2012, the petitioner made advances to the respondent-Company totalling to Rs.360.67
Lakhs as per clause 9 ofthe execution agreement. The petitioner due to non-completion ofthe project by the respondent-Company by notice dated
28^*" May, 2012 terminated the execution agreement and also called upon it to return Rs.300.43 Lakhs after deducting the value for the work done.
Thereafter, on 14^ September, 2012, the petitioner's counsel issued legal th notice to the respondent demanding Rs.300.43 Lakhs with interest. On 29 July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded Rs.4.71 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 saidnotice, statingthat 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 ofHon'ble Mr. Justice C.K.Thakkar, Former Judge the Supreme Court of India. On 20"" February, 2014, the petitioner invoked the arbitration clause as per clause 23 ofthe 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 ofthe notice. On X'f' March, 2014, the petitioner again sent f the arbitration notice to the respondent reiterating contents in the previous notice butto no response. Hence, the present petition has been filed bythe petitioner under Section 11 ofthe Arbitration and Conciliation Act, 1996 for appointment of a sole Arbitrator for reference and adjudication of the disputes thathave 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 in terms of the schedule underthe amended Act. The parties to appear before the Centre on
20^*^ May, 2016 at5.00 pm for directions.
Thepetition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel for the parties and a copy thereof be communicated to the learned Arbitrator forthwith.
APRIL 18,2016/ka /4 $-49 HIGH COURT OF DELHI
ARB.P.59/2015
KALPATARUPOWER TRANSMISSION LTD Petitioner
Through: Mr.Ashish Dholakia,Ms.Anu Tiwari, Mr. Sunil Mittal & Mr. D.Kishore Kumar, Advocates.
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 of partieswithinone 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 itsabsence.
Brief facts are that on 2"'^ March, 2011, the South Eastern Railway issued Letter ofAcceptance along with rate sheet to M/s; KPTL-JMC-Yadav
(Joint Venture) bearing Ref. No.CE/CON/GRC/ER/3086/0828 for construction work between Deshpran to Nandigram. The Joint Venture was th formally entered at New Delhi vide Supplementary Agreement dated 15 March, 2011 among the petitioner, JMC and Yadav. As per the said Joint
2016:DHC:8310 I Venture, the petitioner was made lead partner. The Joint Venture through
Execution Agreement dated 30^*^ March, 2011 delegated power up to the petitioner-Company to ensure timely and successful completion of the project. On the same date, the petitioner entered into execution agreement with the respondent whereby the petitioner sub-contracted the entire project asperterms andconditions agreed.
It is submitted that in between May, 2011 to April, 2012, the petitioner made advances to the respondent-Company totalling to Rs.360.67
Lakhs as per clause 9 ofthe execution agreement. The petitioner due to non-completion ofthe project by the respondent-Company by notice dated
28^*" May, 2012 terminated the execution agreement and also called upon it to return Rs.300.43 Lakhs after deducting the value for the work done.
Thereafter, on 14^ September, 2012, the petitioner's counsel issued legal th notice to the respondent demanding Rs.300.43 Lakhs with interest. On 29 July, 2013, the petitioner received reply from the respondent's counsel whereby the respondent demanded Rs.4.71 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 saidnotice, statingthat 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 ofHon'ble Mr. Justice C.K.Thakkar, Former Judge the Supreme Court of India. On 20"" February, 2014, the petitioner invoked the arbitration clause as per clause 23 ofthe 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 ofthe notice. On X'f' March, 2014, the petitioner again sent f the arbitration notice to the respondent reiterating contents in the previous notice butto no response. Hence, the present petition has been filed bythe petitioner under Section 11 ofthe Arbitration and Conciliation Act, 1996 for appointment of a sole Arbitrator for reference and adjudication of the disputes thathave 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 in terms of the schedule underthe amended Act. The parties to appear before the Centre on
20^*^ May, 2016 at5.00 pm for directions.
Thepetition is accordingly disposed of.
Copy ofthis order be given dasti to the learned counsel for the parties and a copy thereof be communicated to the learned Arbitrator forthwith.
APRIL 18,2016/ka /4 $-49 HIGH COURT OF DELHI
ARB.P.59/2015
KALPATARUPOWER TRANSMISSION LTD Petitioner
Through: Mr.Ashish Dholakia,Ms.Anu Tiwari, Mr. Sunil Mittal & Mr. D.Kishore Kumar, Advocates.
VERSUS
RISHIINFRA PROJECTS PVT LTD AND ORS Respondents
CORAM:JUSTICE S.MURALIDHAR
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 statement that the
Petitioner has no objection iftheir names be deleted from the array of the 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.
Biieffacts aie that on 2 March,2011,the South Eastern Railway issued Letter of Acceptance along with rate sheet to M/s. KPTL-
•IMC-Yadav (Joint Venture) bearing Ref. No.CL/CON/GRC/
ER/3086/0828 for construction work between Deshpran to
Nandigram.Ihe Joint Venture was formally entered at New Delhi vide Supplementary Agreement dated 15"^ March,2011 among the
Petitioner. JMC and Yadav. As per the said Joint Venture Ihe
Petitioner was made lead partner. The Joint Venture through
Arb. P. No.59/2015 Page I of4 Execution Agreement dated 30"^ March,2011 delegated power up to the Petitioner-Company to ensure timely and successful completion of the 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 May, 2011 to April, 2012, the petitioner made advances to the Respondent-Company totalling to
Rs.360.67 lakhs as per clause 9 of the execution agreement. The
Petitioner due to non-completion ofthe project by the Respondent-
Company by notice dated 28"^ May,2012 terminated the execution agreement and also called upon it to return Rs.300.43 lakhs after deducting the value for the work done. Thereafter, on 14"^
September, 2012, the Petitioner's counsel issued legal notice to the
Respondent demanding Rs.300.43 lakhs with interest. On 29'^ July, 2013, the petitioner received reply from the Respondent's counsel whereby the respondent demanded Rs.4.71 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 O.K. Thakkar, Former
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 of the receipt ofthe notice. On 12'^'
March, 2014, the petitioner again sent 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 a sole Arbitrator for reference and adjudication of the disputes thathave arisen between the parties.
For the reasons stated in the petition coupled with the documents p aced on the record, the prayer made in the petition is allowed. ese are five petitions. The parties are same in all sets ofdisputes ■ thus.ItIS appropriate thatsingle sole Arbitratoristo beappointed in ordertosavetime,costand to avoid conflicting findings.
Arb.P. No.59/2015 Page2of4 ! Accordingly, Mr. Justice S.S. Nijjar, Retired Judge of Supreme
I Court(Mobile No.9560453535) is appointed as sole Arbitrator to
I adjudicate the disputes arising between the parties as mentioned in j the present petition as well as four other petitions. The parties are
I also allowed to file their respective claims and counter-claims before j the Arbitrator. j The 'Arbitrator shall ensure the compliance of the provisions of
I Arbitration and Conciliation (Amendment) Act, 2015 before
I commencing the arbitration.The fees ofthe learned Arbitrator shall
I be in terms ofthe schedule under the amended Act. The parties to
I appear before the Centre on 20^'^ May, 2016 at 5.00 pm for
I directions.
I
I Thepetitionisaccordinglydisposedof.
I Copy of this order be given dasti to the,learned counsel for the j parties and a copythereofbe communicated tothelearned Arbitrator
I forthwith.
I 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
18"^ April 2016 passed by this Court. It is seen thatthe initial appointment by this Court is also an exparte 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 statement that the
Petitioner has no objection iftheir names be deleted from the array of the 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.
Biieffacts aie that on 2 March,2011,the South Eastern Railway issued Letter of Acceptance along with rate sheet to M/s. KPTL-
•IMC-Yadav (Joint Venture) bearing Ref. No.CL/CON/GRC/
ER/3086/0828 for construction work between Deshpran to
Nandigram.Ihe Joint Venture was formally entered at New Delhi vide Supplementary Agreement dated 15"^ March,2011 among the
Petitioner. JMC and Yadav. As per the said Joint Venture Ihe
Petitioner was made lead partner. The Joint Venture through
Arb. P. No.59/2015 Page I of4 Execution Agreement dated 30"^ March,2011 delegated power up to the Petitioner-Company to ensure timely and successful completion of the 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 May, 2011 to April, 2012, the petitioner made advances to the Respondent-Company totalling to
Rs.360.67 lakhs as per clause 9 of the execution agreement. The
Petitioner due to non-completion ofthe project by the Respondent-
Company by notice dated 28"^ May,2012 terminated the execution agreement and also called upon it to return Rs.300.43 lakhs after deducting the value for the work done. Thereafter, on 14"^
September, 2012, the Petitioner's counsel issued legal notice to the
Respondent demanding Rs.300.43 lakhs with interest. On 29'^ July, 2013, the petitioner received reply from the Respondent's counsel whereby the respondent demanded Rs.4.71 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 O.K. Thakkar, Former
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 of the receipt ofthe notice. On 12'^'
March, 2014, the petitioner again sent 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 a sole Arbitrator for reference and adjudication of the disputes thathave arisen between the parties.
For the reasons stated in the petition coupled with the documents p aced on the record, the prayer made in the petition is allowed. ese are five petitions. The parties are same in all sets ofdisputes ■ thus.ItIS appropriate thatsingle sole Arbitratoristo beappointed in ordertosavetime,costand to avoid conflicting findings.
Arb.P. No.59/2015 Page2of4 ! Accordingly, Mr. Justice S.S. Nijjar, Retired Judge of Supreme
I Court(Mobile No.9560453535) is appointed as sole Arbitrator to
I adjudicate the disputes arising between the parties as mentioned in j the present petition as well as four other petitions. The parties are
I also allowed to file their respective claims and counter-claims before j the Arbitrator. j The 'Arbitrator shall ensure the compliance of the provisions of
I Arbitration and Conciliation (Amendment) Act, 2015 before
I commencing the arbitration.The fees ofthe learned Arbitrator shall
I be in terms ofthe schedule under the amended Act. The parties to
I appear before the Centre on 20^'^ May, 2016 at 5.00 pm for
I directions.
I
I Thepetitionisaccordinglydisposedof.
I Copy of this order be given dasti to the,learned counsel for the j parties and a copythereofbe communicated tothelearned Arbitrator
I forthwith.
I 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
18"^ April 2016 passed by this Court. It is seen thatthe initial appointment by this Court is also an exparte order.
ORDER
3. The Court accordingly modifies the above order and appoints Mr. Justice K.S.P.Radhakrishnan,former Judge ofthe Supreme CourtofIndia (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 under the aegis of the Delhi International Arbitration Centre.
4. The learned Arbitrator is requested to endeavour to complete the Arb.P. No.59/2015 Page3of[4] © arbi|tration within a period oftwelve months from the date he enters upon reference.
5. certified copy of this order be delivered to the learned Arbitrator forthwith.
SEPTEMBER 26,2016 I ^ b'nesh S.MURALIDHAR,J.