Radhe Krishna Enterprise vs Kalpataru Projects International Ltd.

This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (Arbitration Act) for appointment of an Arbitrator for adjudication of disputes and differences arising between the parties out of the Purchase Order.

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I have heard Ms. Gupte, the learned counsel appearing for the Applicant and Mr.Rao, the learned counsel appearing for the Respondent.

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Perusal of the terms and conditions of the Purchase Order would indicate that the same contains Arbitration Clause-19 which reads thus :

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19. Disputes Resolution and Arbitration

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19.1 Any dispute or difference whatsoever airsing between the parties and out of or relating to the construction, meaning, scope, operation or effect of this Purchase order or the validity or the breach thereof shall be settleed by arbitration in accodance with the Arbitration and Conciliation

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Act, 1996. The arbitration proceedings shall be governed by the rules of Arbitraton of the Indian Council of Arbitration and the award made in pursuance thereof shall be binding on the parties.

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19.2 The arbitration shall be conducted by a sole arbitrator. The Seller will seelect the sole arbitrator form a panel of three (3) arbitators prpovided by the Buyer.

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19.3 The seat of arbitration shall be Mumbai, India. Courts in Mumbai shall have exclusive jurisdiction

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19.4 The language to be used in the arbitral proceedings shall be English language.

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19.5 Performance under the Conract shall be continued during the arbitration proceedings unless otherwise directed by the Employer in writing or unless the matter in such that the perforamnce cannot be possibly continued until the decision of arbitrator is obtained.

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Mr. Rao, the learned counsel appearing for the Respondent submits that the application is not maintainable as the appointment of the Arbitrator is to be done in accordance with the Rules of Indian Council for Arbitration. He invites my attention to Rule 15 of the Rules for Domestic Commercial Arbitration of Indian Council for Arbitration in support of his contention that Indian Council for Arbitration alone can appoint an Arbitrator. He submits that the Petitioner has failed to write to the Indian Council for Arbitration seeking appointment of the Arbitrator. On the other hand, Ms. Gupte, submits that Clause-19.2 of the terms and conditions of the purchase order clearly provides for selection of sole Arbitrator by the Applicant/seller from the panel of three Arbitrators provided by the Respondent-Buyer.

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There appears to be clear inconsistency between Clauses-19.1 and 19.2 of the purchase order. Though Clause-19.1 provides that the arbitration proceedings shall be governed by the rules of arbitration of Indian Council for Arbitration, Clause-19.2 gives authority to the Respondent-buyer to prepare panel of three Arbitrators. The choice of the Applicant-seller to choose the Arbitrator in restricted only within the

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Neeta Sawant

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three nominated names. In Central Organisation for Railway Electrification (CORE) Versus. M/s. Eci Spic Smo Mcml (JV) 1, the Constitution Bench has held that a clause in the Contract conferring right on one of the parties to curate the names of the arbitrators with restriction on the opposite party to choose Arbitrator from that panel is unconstitutional and void violating Article 14 of the Constitution of India. In view of apparent inconsistencies in Clauses-19.1 and 19.2 coupled with the fact that Clause-19.2 confers right of unilateral appointment of Arbitrator of the Respondent-buyer, in my view, it would be just and appropriate to make appointment of Arbitrator by this Court.

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6) Accordingly, I proceed to pass the following order :

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(A) Mr. Anurag Jain, an Advocate of this Court is appointed as Sole Arbitrator to adjudicate upon the disputes and differences between the parties arising out of an purchase order referred to above. The contact details of the Arbitrator are as under :

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Email ID :- anurag [email protected] & [email protected] Mobile No.:- 98337 59856

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(B) A copy of this order be communicated to the learned sole Arbitrator by the Advocate for the Applicant within a period of one week from the date of uploading of this order. The Applicant shall provide the contact and communication particulars of the parties to the Arbitral Tribunal alongwith a copy of this order.

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(C) The learned sole Arbitrator is requested to forward the statutory Statement of Disclosure under Section 11(8) read with Section 12(1) of the Act to the parties within a period of 2 weeks from receipt of a copy of this order.

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1 2024 SCC Online SC 3654

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(D) The parties shall appear before the learned sole Arbitrator on such date and at such place as indicated by him to obtain appropriate direction with regard to conduct of the arbitration including fixing a schedule for pleadings, examination of witnesses, if any, schedule of hearings etc.

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(E) The fees of the sole Arbitrator shall be as prescribed under the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the final Award that may be passed by the Tribunal.

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All rights and contentions of the parties are expressly kept open to be raised before the Arbitral Tribunal.

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With the above directions, the Comm. Arbitration Application is disposed of.

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Digitally signed by NEETA NEETA SHAILESH SHAILESH SAWANT SAWANT Date: 2026.01.20 11:42:27 +0530

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[SANDEEP V. MARNE, J.]

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Radhe Krishna Enterprise v. Kalpataru Projects International Ltd.

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Radhe Krishna Enterprise v. Kalpataru Projects International Ltd.

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