9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (5) TMI 487 - HC - Companies LawArbitration procedures - right to appointment of Arbitrator - Held that - No concrete prima-facie evidence to show that after the receipt of notice from the petitioner in order to invoke the arbitration, there were any serious discussions and suggestions made by the respondent with regard to balance payment claimed by the petitioner. No doubt, there are some documents which would suggest that the meetings were attended by the representatives of the petitioner but there is no direct material which may establish about the discussion of balance amount claimed by the petitioner, though prior to issuance of notice minutes of the meeting held on 19th November, 2012 have been produced where decision on payment to the implementing Agency was taken. In view of the settled law of Datar Switchgears v. Tata Finance Ltd. 2000 (10) TMI 873 - SUPREME COURT OF INDIA it is clear that the respondent had forfeited its right to appoint the arbitrator after the expiry of statutory period. The discretion of appointment of sole arbitrator is now left with the Court. Thus, the appointment of Sh.J.K.Roy, Member (Technology) Retd., Department of Telecommunications is not a valid appointment in accordance with law. Thus, the prayer made in the petition is allowed. In view of the above, Hon ble Mr.Justice R.C.Lahoti, Former Chief Justice of India (R/o B-56, Sector 14, Noida, U.P., Mob.No.9868858999) is appointed as sole Arbitrator to adjudicate the disputes between the parties as mentioned in this petition.
Issues Involved:
1. Non-payment for services rendered by the petitioner. 2. Breach of contractual obligations by the petitioner. 3. Appointment of an Arbitrator for dispute resolution. Detailed Analysis: Issue 1: Non-payment for services rendered by the petitioner The petitioner, a company dealing in software and information technology, was awarded a contract by the respondent for establishing a Secured Communication Network (TETRA) for the Commonwealth Games 2010 and its subsequent operation on a wet lease basis. The petitioner completed the required activities before the start of the Games and the TETRA system was extensively used by various departments, including the Delhi Police, from September 2010 onwards. Despite the continuous use of the system, the petitioner did not receive full payment for the period from 1st September 2010 to 1st March 2012. The petitioner raised invoices amounting to Rs. 30,11,34,498/-, but received only partial payments, leaving an unpaid balance of Rs. 21,15,13,573/-. The petitioner contended that the respondent failed to make the necessary payments despite issuing a circular for the same and despite a decision in a meeting held on 19th November 2012 to make the payments. Issue 2: Breach of contractual obligations by the petitioner The respondent argued that the petitioner had not fulfilled its contractual obligations as per the Master Service Agreement (MSA) and had breached the contract. It was stated that several departments, especially the Delhi Police, lodged complaints about the petitioner's services. The respondent claimed that the petitioner was unable to provide the required services from November 2010 to February 2012, resulting in penalties and deductions based on the recommendations of the Project Management Consultant, TCIL. The respondent also argued that the petitioner had not come to court with clean hands and had suppressed facts. Issue 3: Appointment of an Arbitrator for dispute resolution The petitioner issued a notice on 21st December 2012, requesting the appointment of an Arbitrator as per Article 10(b) of the MSA. The respondent did not respond to this notice, leading to the filing of the present petition. The respondent later appointed Sh.J.K.Roy as the Arbitrator on 10th April 2013, but the petitioner objected to this appointment, arguing that the respondent had lost the right to appoint an Arbitrator after the expiry of 30 days from the notice date. The petitioner sought the appointment of an independent sole Arbitrator by the court. Judgment: The court found no prima facie evidence of serious discussions regarding the balance payment claimed by the petitioner after the notice was issued. The court noted that while some meetings were attended by the petitioner's representatives, there was no material to establish discussions about the balance amount. The court referred to the Supreme Court's decision in Datar Switchgears v. Tata Finance Ltd., which stated that the right to appoint an Arbitrator does not get automatically forfeited after 30 days but continues until the first party moves the court under Section 11. However, the court observed that the respondent's appointment of Sh.J.K.Roy was not valid as it was made after the statutory period and during the pendency of the present proceedings. The court appointed Hon'ble Mr. Justice R.C. Lahoti, Former Chief Justice of India, as the sole Arbitrator to adjudicate the disputes between the parties. The Arbitrator was directed to conduct the proceedings under the provisions of the Arbitration and Conciliation Act, 1996, and the fees were to be paid under the rules of the Delhi High Court Arbitration Centre. The petition was accordingly disposed of, and copies of the order were directed to be given to the learned counsels for the parties, with the registry issuing communication to the learned sole Arbitrator immediately.
|
