Allowed

M/S Aakriti Engineers v. M/S ONGC Mangalore Petrochemicals Ltd.

Karnataka HC15 Nov 2023CMP/423/2022

Case brief

AI extract

What is this about?

The High Court allowed a civil miscellaneous petition for appointing a sole arbitrator under Section 11(5) of the Arbitration and Conciliation Act, 1996. The court rejected the plea that the claim was time-barred, leaving it to the arbitrator to ascertain facts, and appointed a retired District Judge.

What did the court decide?

The petitioner's petition was allowed and Sri. Prakash Kumar, a retired District Judge, was appointed as the sole arbitrator.

M/S Aakriti Engineers Vs M/S ONGC Mangalore Petrochemicals Ltd. — Arbitration | Karnataka HC (2023)

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NC: 2023:KHC:40897 CMP No. 423 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD CIVIL MISC. PETITION NO. 423 OF 2022

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BETWEEN:

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M/S AAKRITI ENGINEERS A PROPRIETARY CONCERN OFFICE T NO C 35 E PARK, MAHANAGAR EXTN LUCKNOW 226006 ALSO AT NO 403 HOLAR SAMAJ CMS, PLOT NO 11 NEAR KOKILABEN DHIRUBAI AMBAIN HOSPITAL FOUR BUNGALOW, ANDHERI (W) MUMBAI 400053 REP BY GENERAL MANAGER SRI NITIN GUPTA S/O ASHOK KUMAR GUPTA

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…PETITIONER

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(BY SRI. MONESH KUMAR K B., ADVOCATE)

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Digitally signed by NARASIMHA MURTHY VANAMALA Location: HIGH COURT OF KARNATAKA

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AND:

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M/S ONGC MANGALORE PETROCHEMICALS LTD 2ND FLOOR MUDA BUILDING URWA STORES MANGALURU 575006

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…RESPONDENT

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(BY SMT. HARSHITHA M., ADVOCATE FOR SRI. KEERTI KUMAR., ADVOCATE)

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NC: 2023:KHC:40897 CMP No. 423 of 2022

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THIS CIVIL MISC. PETITION IS FILED UNDER SEC.11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO APPOINT AN ARBITRATOR AS PER CLAUSE 63 OF THE GENERAL CONDITIONS OF CONTRACT (GCC) FOR PURCHASE / WORK ORDER DATED 29/06/2015 PRODUCED AS ANNEXURE-A WITH A DIRECTION TO ENTER REFERENCE, COMPLETE THE PROCEEDINGS AND PASS THE AWARD WITHIN SUCH TIME AS THIS HON'BLE COURT WILL BE PLEASED TO DETERMINE.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, who is issued with the Work Order dated 29.06.2015 [ Annexure-A ] by the petitioner, has filed this petition for the appointment of a sole arbitrator relying upon Clause 63 of the General Conditions of Contract. It is seen that the parties have agreed that in the event of a dispute the same should be referred to arbitration by a sole arbitrator appointed by the Director-In-Charge of the respondent with the petitioner waiving objections.

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Sri. Monesh Kumar K.B., the learned counsel for the petitioner, submits that arbitration notice dated 08.11.2019 [ Annexure- B] is issued putting the

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NC: 2023:KHC:40897 CMP No. 423 of 2022

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respondent on notice that final partial payment is made on 28.07.2017 and the petitioner is entitled for release of the deducted/pending amount referring to the earlier demand notices caused for the period between September 2017 and June 2019, and the learned counsel submits that in reply, the respondent has only stated, without any elaboration that the dispute is not arbitral.

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The learned counsel for the respondent submits that the work entrusted is completed as of 13.09.2016 and the arbitration notice is caused on 08.11.2019 and it would be irrefutable from the afore that the claim is time barred. The learned counsel also submits that in the circumstances, a technical person must be appointed. These rival submissions are considered, and this Court is of the considered view that in the light of the categorical statements made in the notice dated 08.11.2019, it cannot reasonably be opined that the claim is ex facie time

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NC: 2023:KHC:40897 CMP No. 423 of 2022

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barred. Insofar as the other defence, it would be open to the sole arbitrator to call for assistance, if there is occasion for the same. In the light of the afore, the following:

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ORDER

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a) The petition is allowed.

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b) Sri. Prakash Kumar, a retired District

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Judge, is appointed as the sole Arbitrator to enter reference of the dispute between the petitioner and the respondent and conduct the proceeding

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at the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the Centre.

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c) The Registry is directed to

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communicate this order [by E-mail] to the Arbitration and Conciliation Centre (Domestic and International),

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5 - NC: 2023:KHC:40897 CMP No. 423 of 2022

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Bengaluru and also to Sri. Prakash Kumar, a retired District Judge, Address: No.207, "Mahaveer Ridge Apartments", Begur-Koppa Road, Yelenahalli, Off-Bannerghatta Road, Bengaluru - 560 114 [[email protected]] as required under the Appointment of Arbitrators by the Chief Justice of Karnataka High Court Scheme, 1996.

Sd/JUDGE

NC: 2023:KHC:40897 CMP No. 423 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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[M/S AAKRITI ENGINEERS VS. M/S ONGC MANGALORE PETROCHEMICALS LTD]

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BMSPJ

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20.11.2023

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(VIDEO CONFERENCING / PHYSICAL HEARING)

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ORDER

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This petition was disposed of on 15.11.2023 appointing a retired District Judge to enter reference of the dispute at Bengaluru, but when it was noticed at the time of correction that the parties have agreed that the Courts in Mangaluru will have jurisdiction to hear the dispute, the petition was directed to be listed for ‘Being Spoken To’.

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The learned counsel for the respondent submits that the arbitration proceedings could indeed be at Bengaluru with the Courts at Bengaluru having jurisdiction.

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This submission is taken on record.

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Sd/JUDGE

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NV List No.: 1 Sl No.: 63

M/S Aakriti Engineers v. M/S ONGC Mangalore Petrochemicals Ltd.

Case brief

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What did the court decide?

M/S Aakriti Engineers v. M/S ONGC Mangalore Petrochemicals Ltd.

Case brief

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