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TMI Blog2018 (12) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortium’s office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation. This being the case, we dismiss the petition filed under Section 11 of the Act, as there is no “international commercial arbitration” as defined under Section 2(1)(f) of the Act for the petitioner to come to this Court. We also do not deem it necessary to go into whether the appropriate stage for invoking Arbitration has yet been reached. - Petition(s) for Arbitration (Civil) No(s). 28/2017 - - - Dated:- 3-10-2018 - MR ROHINTON FALI NARIMAN AND MR NAVIN SINHA, JJ. For The Petitioner (s) : Mr. Gopal Jain, Sr.Adv., Mr. Atul Sharma, Adv., Mr. Lakshay Khanna, Adv., Ms. Parshanti Rao, Adv. And Mr. Gautam Talukdar, AOR For The Respondent (s) : Mr. Shyam Divan, Sr. Adv., Mr. Pratap Venugopal, Adv., Mr. A. Sarna, Adv., Ms. Niharika, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall (if instructed) submit copies to the Employer/Employer's Representative. Within 45 days after the Contractor became aware (or should have become aware) of the event or circumstances giving rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Employer/Employer's Representative, the contractor shall send to the Employer/Employer's Representative a fully detailed claim which includes full supporting particulars of the basis of the claim and of the extension of time and/or additional payment claimed. If the event or circumstance giving rise to the claim has a continuing effect: ( a ) this fully detailed claim shall be considered as interim; ( b ) the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Employer may reasonably require; and ( c ) the Contractor shall send a final claim within 30 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Employer/Employer's Representative. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyer's Representative at Site, who shall, within a period of 60 days after being requested in writing by either party to do so, give written notice of his decision to the Employer and the Contractor. The Employer's Representative at Site while considering the matters of dispute referred to him, shall be competent to call for any records, vouchers, information and enforce the attendance of the parties either in person or through authorised representatives, to sort out or clarify any issue, resolve the differences and to assist him to decide the matters referred to him. Subject to arbitration, as hereinafter provided, such decision in respect of every matter so referred shall be final and binding upon the Employer and the Contractor, who shall proceed with the execution of Works/commissioning of the System/Operation Maintenance of the System (as the case may be) with all due diligence irrespective of whether any of the parties goes in or desires to go in for arbitration. If the Employer's Representative at Site has given written notice of his decision to the Employer and the Contractor and no intimation of reference of any claim to arbitration has been sent to him by e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor fails to choose the Arbitrator within thirty (30) days after the Employer has nominated the Panel, the Employer may nominate an Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. If, in a dispute, the two chosen Arbitrators fail to appoint third Arbitrator- Presiding Arbitrator (Arbitration Panel's case) within thirty (30) days after they have been appointed, the Employer may apply to the Indian Council of Arbitration, New Delhi, to nominate the third Arbitrator from the same panel of Arbitrators given by the Employer for the matter in dispute. Neither party shall be limited in the proceedings before such arbitrator/s to the evidence or arguments put before the Employer's Representative at Site for the purpose of obtaining his decision. No decision given by the Employer's Representative in accordance with the foregoing provisions shall disqualify him from being called as a witness and giving evidence before the arbitrator/s on any matter, whatsoever, relevant to dispute or difference referred to arbitrator/s. Substitute Arbitrators- If for any reason on arbitrator is unable to perform his function, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after expiry of 60 days from the date of decision by the Employer's Representative at Site, if notified, or from the date when the Employer's Representative at Site ought to have given his decision in terms of provisions under Sub-Clause 20.2 in case of failure on the part of the Employer's Representative at Site to give notice of decision. Since disputes arose between the parties to the agreement, various interim claims had been made by the Consortium of M/s Larsen and Toubro, an Indian company, together with Scomi Engineering Bhd, a Company incorporated in Malaysia, for which the Consortium has filed this petition under Section 11 of the Act to this Court, since according to them, one of the parties to the Arbitration agreement, being a body corporate, incorporated in Malaysia, would be a body corporate, which is incorporated in a country other than India, which would attract Section 2(1)(f)(ii) of the Act. 2) Shri Gopal Jain, learned senior counsel appearing on behalf of the Consortium, has taken us through the agreement, in which he strongly relies upon the fact that the two entities, that is, the Indian company and the Malaysian company, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the procedure under Clauses 20.1 to 20.3 has been exhausted, he referred to and relied upon a letter dated 22.04.2016 written by the respondent in which, after referring to the various refusals, referred to by Mr. Jain, further information and material was requested from Mr. Jain s client. Instead of furnishing such material straightaway, a notice invoking Arbitration dated 01.07.2016 was sent by Mr. Jain s client. The respondent, by a reply dated 20.08.2016 reiterated its position that Clauses 20.1 to 20.3 had not yet been exhausted, and therefore, on 08.09.2016, rejected the request for arbitration. 4) The contract dated 09.01.2009 is between (1) MMRDA and (2) a Consortium, comprising, (a) L T, an Indian Company, and; (b) M/s Scomi Engineering Bhd, a Malaysian Company. It is true that each of them are jointly and severally responsible to the employer, being collectively referred to as the contractor. 6) As correctly5) Under the General Conditions of Contract, the contractor , in Clause 1.1.2.3 is defined as meaning an Individual, Firm, Company, Corporation, Joint Venture or Consortium, whether incorporated or not. Bidder is also defined under Clause 1.1.2.10 as meani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a letter dated 20.08.2016 in which the respondent reiterated its position that the remedies provided under Clause 20.3 has not yet been exhausted, and that therefore, there is no question of appointing an Arbitrator. On 08.09.2016, the notice invoking arbitration was replied to by the respondent, rejecting the same. 7) It is important, at this juncture, to refer to an order made by the High Court of Bombay dated 20.10.2016 which, as has been stated earlier, arises between the self-same parties, under the same contract. An interim Award made by the Arbitrators qua different claims arising under the same contract had made it clear that the claim could be filed only in the name of the Consortium and not separately, as was contended by Shri Jain s client. The preliminary issue framed on this count was whether the claimants are entitled to file this claim as Claimant No. 1 and Claimant No. 2 or only as the Consortium of L T and Scomi Engineering Bhd? The High Court of Bombay, agreed with the interim Award of the Arbitrators, and held as follows:- 8. Considering the terms and conditions of the contract as well as the decision cited by Mr. Ankhad, in my opinion, in the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrolled by persons in a country outside India. The Court held: 20. The learned counsel contends that the word or being disjunctive, sub-clause (iii) of Section 2(1)(f) of the 1996 Act shall apply in a case where sub-clause (ii) shall not apply. We do not agree. The question of taking recourse to sub-clause (iii) would come into play only in a case where sub-clause (ii) otherwise does not apply in its entirety and not where by reason of an exclusion clause, consideration for construing an agreement to be an international commercial arbitration agreement goes outside the purview of its definition. Once it is held that both the companies are incorporated in India, and, thus, they have been domiciled in India, the arbitration agreement entered into by and between them would not be an international commercial arbitration agreement and, thus, the question of applicability of sub-clause (iii) of Section 2(1)(f) would not arise. The Law Commission Report No. 246 of August 2014, which made several amendments to the Arbitration and Conciliation Act, 1996, gave the following reason for deleting the words a company or : ( iii) In sub-section (1), clause (f), sub-clause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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