Allowed

Schindlers India Pvt. Ltd. v. M/S. S. M. Construction Pvt. Ltd.

Bombay HC17 Dec 2014ARBAP/265/2014

Case brief

AI extract

What is this about?

The High Court of Bombay, in an arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996, appointed Mr. Vishal Kanade as a sole arbitrator because the parties failed to mutually agree on one, despite a valid arbitration clause in their 2010 elevator supply contract.

What did the court decide?

Mr. Vishal Kanade, Advocate, was appointed as the sole Arbitrator to decide the disputes.

Schindlers India Pvt. Ltd. Vs M/S. S. M. Construction Pvt. Ltd. — Arbitration | Bombay HC (2014)

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929-ARBAP-265-2014

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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ARBITRATION APPLICATION NO. 265 OF 2014

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Schindler India Private Limited … Applicant Versus

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M/s. S.M. Constructions Private Limited … Respondent

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Mr. Rajmani Varma a/w. Ms. Sharmila Kulkarni i/b. Navdeep Vora and Associates for the Applicant. None for the Respondent.

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CORAM : S.J. KATHAWALLA, J. DATED : 17TH DECEMBER, 2014

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P.C. :

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The Applicant – Schindler India Private Limited has filed the

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above Arbitration Application against the Respondent – M/s. S.M. Constructions Private Limited under section 11 (6) of the Arbitration and Conciliation Act, 1996 (the Act) for appointment of an independent Arbitrator to resolve the disputes arisen between the parties under the contract dated 1^st April, 2010 (Exhibit-C to the Application).

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The Applicant is in the business inter alia of rendering installation, commissioning, testing and maintenance services for Schindler Elevators and other allied machines. The Respondent is engaged in the business of real estate developers.

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According to the Applicant, under a Contract executed by and between the Applicant and the Respondent dated 1^st April, 2010, the

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929-ARBAP-265-2014

Respondent placed an order with the Applicant to supply and install two elevators, to be installed in the residential project of the Respondent at Goa. The Commercial Terms and Conditions entered into by and between the parties, are at page 27 of the Application. Clause 18 of the said terms and conditions pertains to arbitration and is reproduced hereunder :

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“18. Arbitration

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If any dispute, controversy or claim between the parties arises out of or in connection with this Agreement, including the existence, breach, termination or validity thereof (Dispute), the parties shall use all reasonable endeavors to negotiate with a view to resolving the Dispute amicably. If a party gives the other party notice that a Dispute has arisen (a Dispute Notice) and the parties are unable to resolve the Dispute amicably within 15 days of service of the Dispute Notice (or such longer period as the parties may mutually agree), then the Dispute shall be referred to arbitration.

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Any Dispute shall be referred to and finally resolved by arbitration under the Arbitration and Conciliation Act, 1996. The number of arbitrators shall be one, mutually accepted by the parties. Any arbitral aware shall be final and binding on the parties. The seat of the arbitration shall be Mumbai. The language of the arbitration shall be English. Jurisdiction for purpose of the Arbitration and Conciliation act, 1996 shall be Mumbai”.

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According to the Applicant, since the Respondent failed and neglected to make full payment as agreed, the Applicant through its Advocate's letter dated 30^th January, 2014 was compelled to invoke Clause 18 of the Commercial Terms and Conditions of the said Contract dated 1^st April, 2010 and nominated Ms. Shruti Desai, Advocate, High Court as a sole Arbitrator for resolution of disputes, which arose between the Applicant and the Respondent. The Respondent by its letter dated 26^th February, 2014 requested the Applicant not to proceed with the arbitration proceedings as the outstanding payments would be released at the earliest.

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According to the Applicant, relying on the commitment made by the Respondent, the Applicant in good faith gave some time to the Respondent. However, the Respondent failed and neglected to make any payment to the Petitioner as assured. The Applicant therefore filed the present Application under section 11 of the Act.

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From the aforestated facts, it is clear that there exists a valid agreement between the parties to have their disputes, arising out of the contract dated 1^st April, 2010 (Exhibit-C to the Application) referred to arbitration. The Applicant has invoked the arbitration agreement by its letter dated 30^th January, 2014. However, the Respondent failed to agree to appoint an Arbitrator or to make any payment as assured by its letter dated 26^th February, 2014.

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It is therefore clear that the parties have failed to name any person to be appointed as a sole Arbitrator to resolve their disputes. Hence, the following order :

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i. Mr. Vishal Kanade, Advocate is appointed as a sole Arbitrator to decide the disputes of the Applicant and the Respondent arising out of the contract dated 1^st April, 2010.

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The above Arbitration Application is accordingly disposed of.

Schindlers India Pvt. Ltd. v. M/S. S. M. Construction Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

Schindlers India Pvt. Ltd. v. M/S. S. M. Construction Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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