Allowed

Smec International Pvt. Ltd., v. State of Rajasthan

Rajasthan HC16 Aug 2024ARBAP/125/2022

Case brief

AI extract

What is this about?

In an application under Section 11 of the Arbitration and Conciliation Act for dispute between a private company and State of Rajasthan, the Rajasthan High Court held that internal dispute resolution mechanisms are directory, not mandatory, thus allowing the appointment of a sole arbitrator.

What did the court decide?

Arbitration application allowed; appointment of sole arbitrator to adjudicate the dispute; Registry directed to notify arbitrator.

Smec International Pvt. Ltd., Vs State of Rajasthan — Arbitration | Rajasthan HC (2024)

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[2024:RJ-JP:34682]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Arbitration Application No. 125/2022

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SMEC International Pvt. Ltd., Through Its Attorney Holder Mr. Pushpendra Kumar Sharma Level 5, 20 Berry Street, North Sydney, Nsw Vic 3004, Australia Also At 225, Vardhman Bahnhof Plaza, Pocket-7, Plot No. 10, Sector-12, Dwarka, New Delhi110075.

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----Applicant

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Versus

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State Of Rajasthan, Through Project Director, Rajasthan Urban Infrastructure Development Project (Ruidp) At J.l.n. Marg, Avs Building, Jaipur, Rajasthan-302017 [email protected]

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----Respondent

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For Petitioner(s) : Mr. K. K. Sharma Sr. Adv assisted by Mr. Sanjeev Kumar Singhal Ms. Bhanita Patowary

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For Respondent(s) : Mr. Vikram Pratap Singh

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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Reserved on : 19^th July, 2024 Pronounced on : 16th August, 2024

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Instant Arbitration Application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short A&C Act), has been filed by applicant for appointment of sole Arbitrator for adjudication of dispute with respondent, regarding payment of dues of applicant-company against respondent as well as refund of amount of the bank guarantee, encashed by the respondent.

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Heard counsel for both parties and perused the record.

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The relevant facts in brief, which are necessary to be noticed from the record in order to consider and decide the present arbitration application are that the respondent invited bids for consultancy services for “Establishing Benchmarking of Urban Services in 31 Cities of Rajasthan under Rajasthan Urban Infrastructure Development Project” (RUIDP Phase-III), wherein applicant-company participated and was found suitable as such the applicant-company was awarded project by the respondent under the Written Contract dated 02.03.2017. The main objective of the project of the respondent was to establish system for providing and monitoring service level benchmarks for water supply and waste water management system in 31 cities of the State having population of more than one lakh. According to the terms of contract, the commencement date of the project was fixed with effect from 20.03.2017 and the project was to be completed within a period of 60 months. The total contract value of the project was Rs.10,52,31,048/-. The written contract, contained details of terms and conditions relating to understanding between the parties including the specified specific milestones, reporting specifications and payment terms. The copy of contract dated 02.03.2017 has been placed on record as Annexure-2.

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It is noteworthy that the execution of written contract dated 02.03.2017 between the parties is an admitting fact and this contract contains an arbitration agreement for settlement of disputes under Clause 12.1. It would be apropos to extract the Clause No.12.1, which contains the Dispute Resolution Mechanism as under:-

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“GCC Clause 12 provides for "Settlement of Disputes" 12.1 Dispute Resolution Mechanism shall be as stated in Annexure2.

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Annexure2:

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"Any dispute arising from the contract shall be resolved amicably, as far as possible. The levels of Dispute Resolution Mechanism shall be as follows:

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I. Amicable resolution between representatives of Parties to the Contract.

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II. if a question, difference or objection arises in connection with or out of the contract agreement or the meaning of operation of any part thereof or the rights, duties or liabilities of either party have not been settled by amicable resolution through mutual discussions, it shall be referred to the appropriate Empowered Dispute Resolution Committee for decision, if the amount of the claim is more than Rs.50,000.

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Dispute Resolution Mechanism will have the following Committees at the level of Head of the Department and Administrative Secretary of the Department:

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1. Head of the department level committee: to address disputes in contracts of value upto Rs. 10Lakh:

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The Head of the Department Level Committee shall comprise of Head of the Department, Finance Advisor/ Chief Accounts officer of Department, Concerned Procuring Entity or Additional Head of the Department (Member Secretary) and Representative of Law Department not below the rank of Legal Assistant.

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2 . Administrative Secretary Level Committee: to address disputes in contracts of value of more than Rupees 10 lakh. The Administrative Department Level Committee shall comprise of Administrative Secretary of the

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Department, Representative of Finance Department not below the rank of Deputy Secretary, Law Secretary or his nominee, not below the rank of Joint Legal Remembrancer, Chief Engineer- CUM Additional Secretary of the concerned department and Chief Engineer concerned or Head of the Department, in the case of other than works department (member secretary).

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NOTE: In case the procuring entity is other than a department of the state government, the concerned Administrative Department will decide the levels of various members of the two Dispute Resolution Committees.

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III. Arbitration will be applicable in case of disputes arising in contracts above a value of more than Rs. 1 Crore which remain unresolved through the Dispute Resolution Committee.

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IV. All legal proceedings, if necessary arise to institute by any of the parties shall have to be lodged in Courts situated in Rajasthan and not elsewhere.

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V. Procedure of reference to the Dispute Resolution Committee:

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The Supplier shall present his representation to the Procuring Entity along with a fee equal to two percent of the amount of dispute, not exceeding Rupees One lakh, within three months of occurrence of the Dispute. The Procuring Entity shall prepare a reply of representation and shall represent its stand before the concerned Dispute Resolution Committee. From the side of the Supplier, the claim case may be presented by himself or through a representative. After hearing both the parties, the Dispute Resolution Committee shall pronounce its decision which shall be final and binding both on the supplier and the procuring entity."

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This is also an undisputed fact that the applicant furnished a performance security in form of Bank Guarantee for amounting Rs.1,05,23,105/- to the respondent and while terminating the contract by the respondent vide termination letter dated 22.06.2022 i.e. “Annxure-17”, the performance security has been forfeited as much as further payments to the applicant against submission of 4^th , 5^th and 6^th half yearly report has been withheld, hence, a dispute between parties has arisen.

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The applicant has come up with a case that the applicant carried out the activities as per the scope of work and submitted the reports of work to the respondent time to time and raised 15 invoices to the respondent as per milestones and payment terms of the contract in between the period of May, 2017 to July 2021. Out of 15 invoices, details of which are provided in para No.10 of the Arbitration Application, payment against 10 invoices were made but against 5 invoices, for invoice at serial at serial No.3 and 6 only part payment was made and against invoice indicated at serial No.13, 14 and 15, no payment was made, thus, a sum of Rs.1,90,93,900/- against the 5 invoices is unpaid and outstanding against the respondent.

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It has been pleaded by the applicant that various meetings on 17.08.2020, 19.07.2021 and 23.09.2021 were held with the officials of the respondent but instead of making the payment of outstanding amount, the respondent started finding faults with the duly approved report and work performance of the applicant. It has been pleaded that several correspondence was also exchanged between the parties and various letters, reply letters from both the sides have also been placed on record.

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It has been pointed out that vide letter dated 29.03.2022 (Annx.15) respondent asked the applicant to renew the bank guarantee/ performance security for next six months and in pursuance thereof applicant extended the bank guarantee and submitted it to the respondent’s office vide letter dated 08.04.2022 (Annx.16). But thereafter, instead of making payment of the due amount of Rs.1,90,93,900/- to the applicant, the respondent encashed the extended bank guarantee of Rs.1,05,23,105/- and issued a termination notice dated 22.06.2022 upon the applicant, terminating the contract. The copy of termination notice dated 22.06.2022 is enclosed as Annexure17. The applicant states that this termination notice was not served upon them on the correct address, nevertheless, the applicant admits to acknowledge the same on 28.06.2022. Thus, according to the applicant, the respondent has illegally withheld the legitimate payments of the applicant and further proceeded to terminate the contract arbitrarily as much as encashed the performance security illegally, therefore, the dispute has arisen between the parties within the ambit of the terms of the contract.

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Thereafter, the applicant invoked the arbitration clause for adjudication of the dispute regarding making payment of the legitimate dues of the applicant along with interest as well as to refund the amount of bank guarantee with interest and a letter dated 17.08.2022 (Annx.-18) was served upon the respondent. Through this letter, the applicant nominated a sole Arbitrator to adjudicate the dispute in terms of the arbitration agreement but the respondent expressed its refusal vide letter dated 16.09.2022

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(Annx.-19) for appointment of an Arbitrator stating inter alia that the proposed Arbitrator is not acceptable to RUIDP as well as the notice for appointment of an Arbitrator is not in consonance with the terms of the contract agreement. Hence, the applicant has filed the present application on 22.11.2022 for appointment of an Arbitrator.

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The respondent has resisted the present application for appointment of an Arbitrator fundamentally on the ground that the applicant has not resorted to the process of Dispute Resolution Mechanism as agreed between the parties. While supporting the termination of contract by the respondent vide letter dated 22.06.2022 (Annx.17), it has been contented in the reply of the respondent that the applicant had failed to avail remedy in performance of its obligations under the contract within a period of 30 days in accordance to Clause 6.1.1 (a) of GCC, therefore, contract was terminated lawfully, along with forfeiture of the performance security and no further payments was payable to the applicant.

¶58

The insistence of the respondent is that as per the Dispute Resolution Mechanism, agreed between the parties under Clause 12.1 of GCC, it is stipulated that “Arbitration will be applicable in case of disputes arising in contracts above a value of more than Rs.1 crore which remains unresolved through Dispute Resolution Committee” thus, according to the respondent, when the dispute raised by the applicant is undeniably of more than Rs.1 crore, then, the applicant should first resort to the mechanism to resolve the dispute through Dispute Resolution Committee and if the

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dispute remains unresolved before the Committee, then only capable to refer the dispute for arbitration.

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Hence, the contention of the respondent is that since, applicant has not followed the procedure of Dispute Resolution Mechanism and has not approached before the Dispute Resolution Committee to resolve the dispute, therefore, on this count only, the present arbitration application is liable to be dismissed.

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Heard. Considered.

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Having considered the rival pleadings of both the parties and the contentions made by counsel for both the parties, it has transpired that it is an undisputed fact that the “Establishing Benchmarking of Urban Services in 31 Cities of Rajasthan under Rajasthan Urban Infrastructure Development Project” (RUIDP Phase-III), was awarded by the respondent to the applicant under the terms and conditions of the written contract dated 02.03.2017 and under Clause 12 of GCC, parties also agreed to a Dispute Resolution Mechanism for settlement of disputes. The Dispute Resolution Mechanism as contained in Clause 12.1 has already been extracted hereinabove. 13. A perusal of Dispute Resolution Mechanism, reveals that firstly parties have to resort to solve the dispute by way of amicable resolution. If the dispute pertains to the amount of claim more than Rs.50,000/- has not been settled by way of amicable resolution through mutual discussion between the parties, same shall be referred to the appropriate Empowered Dispute Resolution Committee for decision. Then, in case, dispute pertains to the value of more than Rs.1 crore and which remain unsolved through Dispute Resolution Committee, arbitration will be applicable. Thus,

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it is apparently clear that the intention of parties to get resolve the disputes finally, through Arbitration having value of dispute of claim is more than Rs.1 crore.

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Coming to the objection of the respondent that the applicant has not resorted the procedure of Dispute Resolution Mechanism, this Court finds that indisputably various meetings were held between the parties as much as correspondence through written letters were also exchanged but the dispute of claiming the outstanding payment of applicant could not be settled by way of amicable resolution. The letter dated 27.09.2021 written by the applicant to the Project Manager, RUIDP is available on record as Annexure-9 wherein reference of meeting dated 23.09.2021, held for amicable settlement of dispute in accordance with the Dispute Resolution Mechanism under Clause 12.1 of GCC, finds place. In the subject matter in this letter, applicant stated that all discussions for amicable settlement of dispute and termination of contract under Clause 6.1.1 (e) of GCC have been held on 22.07.2021 and 27.07.2021 respectively. It is also stated that the applicant had submitted consent to terminate the agreement and further the meeting dated 23.09.2021 has also been held for formalization of the same decision.

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In this letter, applicant made a request to the respondent to conclude the contract under Clause 6.1.1(e) of GCC and release the due payments of the applicant as also the bank guarantee. 15. A letter dated 14.10.2021 written from the side of the respondent to the applicant as also available on record as Annexure-11 wherein there is a reference of previous letters dated 10.06.2021 and 27.07.2021 as also of the meeting for amicable

(10 of 18)

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settlement dated 23.09.2021. In this letter, the respondent asked the applicant to submit a report containing justification within period of one month positively, that the reports already submitted by applicants are useful to RUIDP and other stakeholders so that further action can be taken in accordance to the contract conditions.

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The correspondence from the side of the applicant dated 26.10.2021 (Annx.-12) and 11.11.2021 (Annx.-13) are also available on record through which applicant wrote to the respondent that the report dated 11.11.2021 is not part of applicant’s contractual obligation but is being submitted only to held the respondent to understand the good work done by the applicant. 17. Thereafter, it is also undisputed fact that the respondent vide letter dated 29.03.2022, asked the applicant to renew the bank guarantee and the applicant renewed the same and submitted to the respondent’s office vide letter dated 08.04.2022 but thereafter, the respondent issued termination letter dated 22.06.2022 and terminated the contract with forfeiture of the bank security and no further payments to the applicant.

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In the light of above referred factual matrix and exchange of written correspondence between parties and holding joint meetings as available on record, in the opinion of this Court, it may not be said that efforts to resolve the dispute through amicable settlement were not made between parties. It seems to be an empty formality and unreasonable also to refer back the parties for amicable settlement and to dismiss the Arbitration Application only this count. Otherwise also, amicable settlement can be arrived at any time depend upon wish of parties, so same is not embargo to appoint Arbitrator.

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As far as, taking resort to resolve the dispute through Dispute Resolution Committee is concerned, from perusal of the Mechanism of Dispute Resolution, adherence to such remedy has not been held mandatory nor it is provided in the arbitration agreement that the period of proceedings before the Dispute Resolution Committee is excluded for calculating the period of limitation to invoke the arbitration.

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In this respect, the judgment delivered by the Hon’ble Delhi High Court in case of Ravindra Kumar Verma Vs. M/s BPTP Ltd. And Anr. [(2015) 147 DRJ 175)] render support to the case of the applicant for invocation of the arbitration agreement, without resorting to approach Dispute Resolution Committee. The issue came up before the High Court was that is the arbitration clause not capable of being invoked, if a prior requirement contained in the arbitration clause is not complied with? The Court held and observed that the requirement of such procedure is directory and not mandatory. The Court relied upon the principles laid by the Hon’ble Delhi High Court in case of Saraswati Construction Company Vs. Co-operative Group Housing Society Ltd. [(1995) 57 DLT 343] , and additionally assigned two other reasons for holding that a prior requirement to be complied with before seeking reference of disputes to the arbitration is only directory and not mandatory.

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For ready reference, the reasons assigned by the Hon’ble High Court are as under:-

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“The first reason is that if the arbitration clause is read in a mandatory manner with respect to prior requirement to be complied with before invoking arbitration, the same can

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result in serious and grave prejudice to a party who is seeking to invoke arbitration because the time consumed in conciliation proceedings before seeking invocation of arbitration is not exempted from limitation under any of the provisions of the Limitation Act, 1963 including its Section 14. Once there is no provision to exclude the period spent in conciliation proceedings, it is perfectly possible that if conciliation proceedings continue when the limitation period expires the same will result in nullifying the arbitration clause on account of the same not capable of being invoked on account of bar of limitation i.e when proceedings for reference to arbitration are filed in court, the right to seek arbitration may end up being beyond three years of arising of the disputes and hence the petition for reference may be barred by limitation. Another example would make this position clear that suppose on the last date of limitation period of three years a party wants to invoke an arbitration clause but the arbitration clause contains the requirement of invoking the precondition of 'mutual discussion'. Surely, on the last date if a notice has to be given for invoking mutual discussion, no mutual discussion or conciliation can take place on the same date of the notice itself i.e no mutual discussion can take place before expiry of the period of limitation which expires on that very day on which the notice for mutual discussion is given. Therefore, if the pre-condition of mutual discussion is treated as mandatory, valuable rights of getting disputes decided by arbitration will get extinguished and which is not a position which should be acceptable in law.”

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The ratio decidendi expounded by the Hon’ble Delhi High Court applies to the facts of case in hand, more particularly taking into consideration the procedure of Dispute Resolution Mechanism wherein the resort for resolution of dispute before the Dispute Resolution Committee has not been held mandatory and the

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period is not excludable, while computing the limitation for invocation of arbitration for resolution of dispute. Thus, applying the same analogy the procedure for resolution of dispute through Dispute Resolution Committee is found to be directory and not mandatory in the present case as well.

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Further, it would not be out of place to refer the judgment of the Hon’ble Supreme Court in case of Demerar Distilleries Private Limited and Another Vs. Demerara Distillers Limited [(2015) 13 SCC 610], which also talks about the prior mechanism to resolve dispute before availing remedy of arbitration. The relevent portion of judgment is as under:-

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“In this case, the contention of the Respondent Company was that the invocation of the Arbitration Clause, even if the same is held to be applicable, is premature as Under Clause 3 of the Agreement, differences are required to be resolved first by mutual discussions, followed by mediation, and, only on failure of mediation recourse to Arbitration is contemplated, was rejected.

¶96

The Hon'ble Supreme Court was of the view that " Of the various contentions advanced by the RespondentCompany to resist the prayer for appointment of an Arbitrator Under Section 11(6) of the Act, the objections with regard the application being premature; the disputes not being arbitrable, and the proceedings pending before the Company Law Board, would not merit any serious consideration. The elaborate correspondence by and between the parties, as brought on record of the present proceeding, would indicate that any attempt, at this stage, to resolve the disputes by mutual discussions and mediation would be an empty formality. The proceedings before the Company Law Board at the instance of the present Respondent and the prayer of the Petitioners therein for reference to Arbitration

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cannot logically and reasonably be construed to be a bar to the entertainment of the present application.".…

¶101

It is well established principle of law through various judgments of the Hon’ble Supreme Court that an arbitration agreement is a commercial document inter parties and must be interpreted so as to give effect to the intention of parties, rather than to invalidate it on technicalities. To buttress such proposition, reference of the judgments of the Hon’ble Supreme Court in cases of MTNL Vs. Canara Bank [(2020) 12 SCC 767] and M/s Govind Rubber Limited Vs. M/s Louids Dreyfus Commodities Asia (P) Ltd. [(2015) 13 SCC 477] would be suffice. In the present case, intention of parties is much more evident from the arbitration agreement to get decide the dispute finally through Arbitration.

¶102

Counsel for the respondent has relied upon the judgment of the Hon’ble Delhi High Court in case of M/s Chabbras Associates Vs. M/s HSCC India Limited & Anr. wherein the Arbitration Application was dismissed being premature due to not invoking the procedure prescribed in the agreement before invocation of the arbitration agreement. In that case, the Hon’ble Delhi High Court considered Clause 25 of GCC and concluded that the above clause clearly shows that before invoking the arbitration, the parties have agreed to the Dispute Resolution Mechanism, where the dispute is first required to refer to the review authority, thereafter, to the Appealling Authority and finally to the DRC. It is only where either of the parties is dissatisfied with the decision of DRC, that such party can invoke arbitration.

(15 of 18)

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The Court further held that even in the notice for invoking arbitration, a reference has to be given about the decision of the appealling authority. Thus, in view of that kind of watertight and rigorous nature of the arbitration agreement, where undertaking the procedure prior to invocation of arbitration was made essential and necessary, the arbitration application was dismissed as premature but here, having perused the Dispute Resolution Mechanism, this Court finds that the recourse of approach before the Dispute Resolution Committee for resolution of dispute is neither essential nor mandatory. There is a wiggle room in the mechanism to approach before Dispute Resolution Committee but arbitration in the final recourse undoubtedly hence this judgment, does not support the plea of respondent to reject the arbitration application and relegate the applicant first to take resort of remedy for resolution of dispute before the Dispute Resolution Committee, prior to seeking for refer the dispute to arbitration.

¶107

In addition to above, it may also be observed that undeniably the dispute raised by the applicant pertains to more than Rs.1 crore, therefore, as per the arbitration agreement such dispute is liable to be adjudicated through arbitration, thus, the dispute is certainly arbitrable. 25. Indisputably, a written Arbitration Agreement as contained in Clause 12.1 of the GCC extracted hereinabove, exists between parties and while considering the application for appointment of Arbitrators under Section 11 of the A&C Act, the High Court is required to examine the existence of an Arbitration Agreement between parties as envisaged under Section 11(6A) of the A&C

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Act. For ready reference the provision of Section 11(6A) of A&C Act is being reproduced hereunder:-

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"(6A) The Supreme Court or, as the case may be, the High Court, while considering any application under sub-section (4) or sub-section (5) or sub-section (6), shall, notwithstanding any judgment, decree or order of any Court, confine to the examination of the existence of an arbitration agreement."

¶113

In a recent judgment dated 30.12.2023, delivered by the Seven Judges Bench of the Hon’ble Supreme Court in Re: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 and the Indian Stamps Act, 1989 [AIR 2024 SC 1], in para No.152 and 154, it has clearly been observed that the omission of Section 11(6A) proposed by introducing Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019) has not been notified in the Official Gazette and therefore, the said provision continues to remain in full force. In this judgment, placing reliance on previous judgments of the Apex Court delivered in the cases of Duro Felguera, S.A. Vs. Gangavaram Port Limited [(2017) 9 SCC 129] and Mayavati Trading Private Limited Vs. Pradyuat Deb Burman [(2019) 8 SCC 714], it has been held that the legislature confined the scope of reference under Section 11(6A) to the examination of existence of an arbitration agreement. It has been held that the referral Court only needs to consider one aspect to determine the existence of an arbitration agreementwhether underlying contract contains arbitration agreement which

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provides for arbitration pertaining to the dispute, which has arisen between parties to the agreement. Thus, this Court has to rely upon the provision of Section 11(6A) of the A&C Act, which is extracted hereinabove.

¶118

The final outcome of the aforesaid discussions is that the present Arbitration Application deserves to be allowed and the Arbitration Tribunal of sole Arbitrator needs to be appointed to adjudicate the dispute between parties in accordance with provision of the Arbitration and Conciliation Act, 1996 (for short A&C Act).

¶119

Hence, the present Arbitration Application succeeds and same is hereby allowed. This Court constitutes the Arbitration Tribunal of sole Arbitrator of Hon’ble Mr. Justice Sangeet Raj Lodha, Former Judge of the Rajasthan High Court, Address:- C-41 First Floor C Block, Greater Kailash-1, New Delhi-110048 Mobile No.09414130220; E-mail:- [email protected] , to adjudicate the dispute between parties in accordance with the provisions of the Arbitration and Conciliation Act, 1996.

¶120

The Arbitration fee shall be payable in accordance with the provisions contained in the Manual of Procedure for Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure for Alternative Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with 4th Schedule appended to the Act of 1996.

¶121

The Registry is directed to intimate the Arbitrator Hon'ble Mr. Justice Sangeet Raj Lodha , for his approval.

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Parties are at liberty to raise their respective objections before the Arbitrator, who is supposed to consider and decide the objections as well as the dispute between parties in accordance with law.

¶126

Since, as per Section 29A of the Arbitration Act, 1996, the arbitration proceedings are required to be concluded within scheduled time as stipulated therein, it is expected that parties shall provide E-mail/ Contact Number/ Mobile Number of themselves as also of their authorized representatives/ lawyers, appearing on their behalf respectively, before the Arbitration Tribunal, in order to facilitate the Arbitrator to send information to the parties, whenever required. The information send by the Arbitrator, on such address/ E-mail/ cellphone of the parties/ their authorized representative lawyers, shall be treated as sufficient unless same is not changed.

¶127

It is expected that both parties shall mark their presence before the Arbitrator on 09^th September, 2024 or on any other date as informed by the Arbitrator to the parties or agreed between both parties with the consent of the Arbitrator.

¶128

All pending application(s), if any, stands disposed of.

¶129

(SUDESH BANSAL),J

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SOURAV /76

Smec International Pvt. Ltd., v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Smec International Pvt. Ltd., v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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