Allowed

Tecnimont Private Limited, v. Bharat Petroleum Corporation Limited

Kerala HC12 Nov 2020AR/32/2020

Case brief

AI extract

What is this about?

Allowed applicant's arbitration requests under Section 11(6) of the Arbitration and Conciliation Act, 1996. The court approved the appointment of a sole arbitrator to resolve contractual disputes between the parties despite the respondent's objection to the applicant's nominated arbitrator.

What did the court decide?

Appointed Justice Abraham Mathew as sole arbitrator; ordered applicant to obtain disclosure statement from the arbitrator.

Tecnimont Private Limited, Vs Bharat Petroleum Corporation Limited — Arbitration | Kerala HC (2020)

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A.R.NOS.32&33/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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AR.No.32 OF 2020

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PETITIONER/S:

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TECNIMONT PRIVATE LIMITED, FORMERLY KNOWN AS TECNIMONT ICB PVT.LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT TECNIMONT HOUSE, CHINCHOLI BUNDER, 504, LINK ROAD, MALAD (WEST), MUMBAI - 400064 REPRESENTED BY ITS DEPUTY MANAGER (LEGAL) AND AUTHORISED SIGNATORY, MR.ARUN RANGA.

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BY ADVS. SRI.K.N.SIVASANKARAN SRI.SUNIL SHANKER

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RESPONDENT/S:

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BHARAT PETROLEUM CORPORATION LIMITED, A PRIVATE LIMITED COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT BHARAT BHAVAN, 4 AND 6, CURIMBHOY ROAD, BALLARD ESTATE, P.B.NO.688, MUMBAI - 400 001, AND HAVING ITS REFINERY AT POST BAG NO.2, AMBALAMUGAL, ERNAKULAM DISTRICT - 683 302.

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R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS R1 BY ADV. SRI.PAULOSE C. ABRAHAM

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OTHER PRESENT:

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SC- SRI.GOPIKRISHNAN NAMBIAR

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THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 12.11.2020, ALONG WITH AR.33/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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A.R.NOS.32&33/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942

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AR.No.33 OF 2020

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PETITIONER/S:

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TECNIMONT PRIVATE LIMITED FORMERLY KNOWN AS TECNIMONT ICB PVT.LTD., A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 AND HAVING ITS REGISTERED OFFICE AT TECNIMONT HOUSE, CHINCHOLI BUNDER, 504, LINK ROAD, MALAD (WEST), MUMBAI-400 064, REPRESENTED BY ITS DEPUTY MANAGER(LEGAL) AND AUTHORISED SIGNATORY, MR.ARUN RANGA.

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BY ADVS. SRI.K.N.SIVASANKARAN SRI.SUNIL SANKAR.P.

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RESPONDENT/S:

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BHARAT PETROLEUM CORPORATION LIMITED A PRIVATE LIMITED COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT,1956 AND HAVING ITS REGISTERED OFFICE AT BHARAT BHAVAN, 4 AND 6, CURIMBHOY ROAD, BALLARD ESTATE, P.B.NO.688, MUMBAI400 001, AND HAVING ITS REFINERY AT POST BAG NO.2, AMBALAMUGAL, ERNAKULAM DISTRICT-682 302.

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R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS R1 BY ADV. SRI.PAULOSE C. ABRAHAM

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THIS ARBITRATION REQUEST HAVING COME UP FOR ADMISSION ON 12.11.2020, ALONG WITH AR.32/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

A.R.NOS.32&33/2020

ORDER

Dated this the 12 th day of November 2020

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These Arbitration Requests are filed by the very same

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applicant under Section 11(6)(a) of the Arbitration and Conciliation Act 1996. Applicant was awarded

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instrumentation work as well as electrical work by the very same respondent, on being the successful bidder pursuant to notices inviting tenders. Separate agreements were executed towards the instrumentation contract and electrical contract. A.R.No.32/2020 relates to the instrumentation contract and A.R.No.33/2020 relates to electrical contract. There arose disputes and differences between the parties relating to delay in providing facilities for commencement of work, execution of project, completion of work, payment, etc. Clause 91 (a) of Annexure A2- general conditions of contract which is part of Annexure A1 agreement entered into between applicant and the respondent, provides that any dispute or difference of any nature, claim or counter claim, etc arising out of or in relation to the agreement shall be referred to the sole arbitration of the Director (Refinery) of the Corporation. Clause 91(a) was amended as contained in Annexure-A3, which read as follows:

A.R.NOS.32&33/2020

ARBITRATION

The party who desires arbitration shall, within thirty (30) days from the date of failure of amicable settlement, send to the other Party, the request to jointly select the arbitrator who shall be selected by mutual agreement of the parties as the sole arbitrator within ninety (90) days after receipt of the above referred request. If the parties fail to agree on a nominee within the period specified, the party desiring the arbitration shall make an application to the High Court of Bombay for the appointment of the arbitrator and the dispute(s) shall be settled by arbitration under the provisions of the Arbitration and Conciliation Act, 1996 as amended from time to time. The award of the arbitrator so appointed shall be final conclusive and binding on all parties to the agreement subject to the provisions of the Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof and the rules made there under for the time being in force shall apply to the arbitration proceedings under this clause.

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It is stated that when attempts for amicable

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settlement failed, applicant issued Annexure-A9

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commencement notice to the respondent on 10.01.2020 invoking Clause 91(a) of General conditions of contract as amended, raising their claims. It is stated that they had also nominated their preferred Arbitrator. Thereupon, the respondent as per Annexure-A10 letter, while disputing the claims raised by the applicant, informed that the nominated Arbitrator was not acceptable to them. These Arbitration Requests are preferred thereafter, raising the claims and contentions against the respondent.

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The Respondent has filed objections in both the A.Rs raising their counter claims while admitting the provision for resorting to arbitration.

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A.R.NOS.32&33/2020

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Having considered the pleadings and contentions on

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both sides and the provisions contained in Clause 91(a) of Annexure-A2 as amended in Annexure-A3, it is seen that there is no dispute over the availability of a provision in the agreements executed by the parties in respect of both the contracts for appointment of a sole arbitrator. There is no dispute also over the applicability of Section 11(6) of the Arbitration and Conciliation Act, 1996. Therefore, these Arbitration Requests are allowed.

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Justice Abraham Mathew, Former Judge of this Court, Kandathil, Near Satellite Township, Padamugal, Kakkanad P.O., Kochi-682 030 is appointed as the Arbitrator to resolve the disputes between the parties. The applicant shall obtain a disclosure statement from the Arbitrator as

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provided in section 11(8) of the Arbitration and Conciliation Act, 1996, original of which shall be retained by the Registry. Certified copy of this order need be issued only on production of the disclosure statement. A copy of the same shall be appended to the certified copy of this order.

Sd/-

P.V.ASHA JUDGE

rkc

A.R.NOS.32&33/2020

APPENDIX OF AR 32/2020

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF INSTRUMENTATION CONTRACT. ANNEXURE A2 TRUE COPY OF GENERAL CONDITIONS OF CONTRACT. ANNEXURE A3 TRUE COPY OF AGREED DEVIATIONS TO THE TENDER CONDITIONS. ANNEXURE A4 TRUE COPY OF MINUTES OF THE MEETING. ANNEXURE A5 TRUE COPY OF JOB COMPLETION CERTIFICATE. ANNEXURE A6 TRUE COPY OF FINAL COMPLETION CERTIFICATE. ANNEXURE A7 TRUE COPY OF LETTER OF THE PETITIONER ALONGWITH THE BILL ABSTRACT OF FINAL BILL AND MEMORANDUM OF PAYMENT. ANNEXURE A8 TRUE COPY OF ORDER IN CMA ARBITRATION NO.1783 OF 2019 BEFORE THE HON'BLE DISTRICT COURT AT ERNAKULAM. ANNEXURE A9 TRUE COPY OF COMMENCEMENT NOTICE. ANNEXURE A10 TRUE COPY OF LETTER OF THE RESPONDENT.

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A.R.NOS.32&33/2020

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APPENDIX OF AR 33/2020

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A1 TRUE COPY OF ELECTRICAL CONTRACT. ANNEXURE A2 TRUE COPY OF GENERAL CONDITIONS OF CONTRACT. ANNEXURE A3 TRUE COPY OF AGREED DEVIATIONS TO THE TENDER CONDITIONS. ANNEXURE A4 TRUE COPY OF MINUTES OF THE MEETING. ANNEXURE A5 TRUE COPY OF JOB COMPLETION CERTIFICATE. ANNEXURE A6 TRUE COPY OF FINAL COMPLETION CERTIFICATE. ANNEXURE A7 TRUE COPY OF LETTER OF THE PETITIONER ALONG WITH BILL ABSTRACT OF FINAL BILL AND MEMORANDUM OF PAYMENT. ANNEXURE A8 TRUE COPY OF ORDER IN CMA ARBITRATION NO.1783 OF 2019 BEFORE THE HON'BLE DISTRICT COURT AT ERNAKULAM. ANNEXURE A9 TRUE COPY OF COMMENCEMENT NOTICE. ANNEXURE A10 TRUE COPY OF LETTER OF THE RESPONDENT.

Tecnimont Private Limited, v. Bharat Petroleum Corporation Limited

Case brief

What is this about?

What did the court decide?

Tecnimont Private Limited, v. Bharat Petroleum Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

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