9911796707
TMI Blog2022 (8) TMI 1462X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 600 - SUPREME COURT] as is the case in the present writ petition. However, while dealing with the contentions as raised and dismissing the said writ petitions, judgment of the Three Judge Bench of the Hon ble Supreme Court in S.K. Jain v. State of Haryana [ 2009 (2) TMI 926 - SUPREME COURT] was duly considered. It was also noticed that Hon ble Supreme Court itself in the case of M/s ICOMM Tele Limited referred to the case of S.K. Jain and infact upheld the clause regarding pre-deposit in S.K. Jain s case. Thus, the question sought to be raised has been clearly answered against the petitioner. Learned counsel for the petitioner is unable to point out any distinguishing feature in the present writ petition which calls for interference. Insofar as the argument raised on behalf of the petitioner that once Chief Engineer has appointed Arbitrator on demand raised by the petitioner without any condition of pre-deposit, thus, the same amounts to waiver of said condition, is of no avail to the petitioner, for the reason that it is specifically observed by the learned Arbitrator in order dated 15.01.2022 that appointing authority did not waive the condition of pre-deposit but rathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 29.09.2020. Thereafter, Chief Engineer appointed the learned Arbitrator to adjudicate all disputes and differences between the parties. Statement of claim was filed by the petitioner on 30.06.2021 and application for amendment of statement of claim was allowed on 15.11.2021. Statement of defence was filed alongwith application under Section 16 of the Arbitration Act on 31.12.2021. Objection was raised by the respondent that in view of clause 25(A)(vii) of the Contract, it is incumbent upon the petitioner to first furnish the security deposit in terms thereof. Application under Section 16 of the Arbitration Act filed by the respondent was allowed by the learned Arbitrator vide impugned order dated 15.01.2022 directing the petitioner to comply with clause 25(A)(vii) of the agreement within six weeks with a direction that the said amount be kept in fixed deposit to earn interest and the amount would remain available for refund, if any, at the time of pronouncement of Award. It is further ordered that proceedings shall remain suspended till compliance of order. Petitioner challenged this order before the learned Additional District Judge, Gurugram by filing appeal under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded the whole of the sum will be refunded to him within one month from the date of the award. AMOUNT OF CLAIMS RATE OF SECURITY DEPOSIT i) For claims below Rs.10,000/- 2% of amount claimed. ii) For claims of Rs.10,000/- and Above below Rs.1,00,000/- 5% of amount claimed. iii) For claims of Rs.1,00,000/- 7 % of amount claimed and above. Offending clause as involved in the case of M/s ICOMM Tele Limited (supra) was that of deposit-at-call of 10%, which reads as under:- viii. It shall be an essential term of this contract that in order to avoid frivolous claims the party invoking arbitration shall specify the dispute based on facts and calculations stating the amount claimed under each claim and shall furnish a depositat- call for ten percent of the amount claimed, on a schedule bank in the name of the Arbitrator by his official designation who shall keep the amount in deposit till the announcement of the award. In the event of an award in favour of the claimant, the deposit shall be refunded to him in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given below and the sum so deposited shall, on the termination of the arbitration proceedings be adjusted against the costs, if any, awarded by the arbitrator against the claimant party and the balance remaining after such adjustment in the absence of any such costs being awarded, the whole of the sum will be refunded to him within one month from the date of the award Amount of claim Rate of security deposit 1. For claims below Rs.10,000 2% of amount claimed 2. For claims of Rs.10,000/- and above and below Rs.1,00,000/-and 5% of amount claimed 3. For claims of Rs.1,00,000 and above 7% of amount claimed 13. In upholding such a clause, this Court referred to the judgment in Central Inland Water Transport Corporation (supra) and distinguished this judgment, stating that the concept of unequal bargaining power has no application in the case of commercial contracts. It then went on to hold:- 14. It has been submitted by learned counsel for the appellant that there should be a cap in the quantum payable in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tele Limited s case (Supra), the objectionable clause 25 (viii) was struck down finding the same to be arbitrary. Thus, the question sought to be raised has been clearly answered against the petitioner. Learned counsel for the petitioner is unable to point out any distinguishing feature in the present writ petition which calls for interference. Insofar as the argument raised on behalf of the petitioner that once Chief Engineer has appointed Arbitrator on demand raised by the petitioner without any condition of pre-deposit, thus, the same amounts to waiver of said condition, is of no avail to the petitioner, for the reason that it is specifically observed by the learned Arbitrator in order dated 15.01.2022 that appointing authority did not waive the condition of pre-deposit but rather asked the Arbitrator to decide the disputes as per clause 25 and 25 (A) of the Contract instead of passing any other order after taking note of the claimant s plea that it was not liable to deposit 7 % of the claimed amount. Though copy of the order passed by the Chief Engineer appointing Arbitrator has not been placed on record, there is no denial of this observation made by the learned Arbitrato ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
