M/S. Schindler India Private Limited, v. M/S. Pochiraju Industries Limited

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD TUESDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND NINETEEN PRESENT THE HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY ARBITRATION APPLICATION NO: 52 OF 2014 Between:

M/s. Schindler lndia Private Limited, A companies resgietred under Companies Act, 1956, and having its registered office at 8-401 , 402 Delphi, Hiranandani Business Park, Powai, Mumbai - 400 076 And its branch office at S.R.Arcade, 3'o Floor 1-2-7312, 1-2-63 & 64, Parklane, Secunderabad - 500 003 Rep. by its authorised representative Mr. Arun Manikya, S/o. [/anikya ...APPLICANT AND M/s. Pochiraju lndustries Limited, having its office at Plot No.7, Phase ll, Alexandria Knowledge Park, Geneome Valley, Kolthur, Shamirpet Mandal, Ranga Reddy District, Andhra Pradesh - 500 078 Rep. by its Managing Director ...

RES'ONDENT Application under Section 1 I (6) of the Arbitration and Conciljation Act, 1996 read with Scheme of Appointment of Arbitrators 2006 praying that for the reasons stated in the affidavit filed therewith, the High Court may be pleased to appoint a Sole Arbitrator to adjudicate the claims and disputes between the Applicant Company and the Respondent Company, and ii) to award costs of application This Application coming on for hearing, upon perusing the Application and affidavit filed in support thereof and upon hearing the arguments of Sri N.Praveen Reddy, Advocate for the Applicant and Sri J.Ch.Y.Narsimham, Advocate for the Respondent not being present.

The Court made the following: ORDER

THE HoN,BLE SRI JUSETICE A.RA]ASHEKER IEEIDY AREIITRATION APPLICATION NO.52 OF 2I)14

ORDER

The case of the applicant - company is that it ir.; involved in the business of manufacturing and sale of elevators and e scalators, and it entered into an agreement with the respondent - company on 12.11.2010, for supply of eler,ators, and accordingly as per the agrer-.ment it supplied three elevators and raised bill for payment of Rs.32,60,000/- :Rupees thirty two lakhs, sixty thousand only), but the respondent paid cnly an amount of Rs.29,70,000/- (Rupees twenty nine lakhs, seventy thoirsand only), and failed to pay the balance amount. Therefore, it issued notices on 07.02.2013 and 07.O2.2074, to pay the balance amount, but as there was rto response, it issued notice on 04.04.2014, invoking the arbitration clause and for appointment of an arbitrator. In spite of receipt of the said notice dated 04.O4.

20t4, as there was no response, applicant filed the p'esent application under Section 11(6) of the Arbitration and Conciliation Act. 19,96, read with Scheme to Appointment of Arbitrators, 2006, seeking to appoint sole arbitrator to adjudicate the claims and disputes between tt-re applicant - company and the "espondent - company.

Though not ce is served on the respondent, there is 1o representation on lts behalf, and ro :ounter affidavit is filed. Learned coJnsel for the applicant reiterating the zbove averments, further submits tlat the respondent - company also iss:ed notice dated 28.08.2019 for conduct of its 24th Annual General Meeting. Clause 18 of the commercial terms and conditions )f tie agreement dated 12.11.2010 rer ds as follows:

"If any dispute, controversy or claim between the pa.tie:; arises out of or in connection w th the agreement, including the e <istt:nce, breach, termination or validity thereof (dispute), the parties shall L se a I reasonable endeavors to negotiate with a view to resolve the disput -' arricably. 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 amiably rvitl in 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. 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. The seat of arbitration shall be Mumbai. The language of the arbitration shall be English. Jurisdiction for purpose of the Arbitration and Conciliation Act, 1996 shall be lvlumbai." The above clause in the agreement provides that if a dispute arises between the parties, the same shall be resolved amicably by negotiations, and if a party gives dispute notice to the other party, and if the parties are unable to resolve the dispute amicably, then the dispute shall be referred to arbitration.

In the present case, the applicant has issued notices on 07.02.2013 and 07.02.2014 to the respondent seeking for payment of balance amount, and the said notices are stated to have been served on the respondent. The applicant along with this arbitration application, filed photo copies of the acknowledge m e nts. As there was no response in spite of receipt of notices, the applicant issued notice dated 04,04.2014, in terms of Clause 18 of the agreement for appointment of sole arbitrator to resolve the dispute for nonpayment of the amount. In the said notice, the applicant sought to appoint Ms. Shruti Desai, Advocate, High Court of Mumbai, 1't floor, Yousuf Building, Near Flora Fountain, Fort Mumbai - 400 001, as the sole arbitrator, to resolve the dispute.

As there was no response from the respondent in spite of receipt of said notice, the present application is filed. As noted above, in the present application, though notice was served on the respondent, there is no representation, and no counter affidavit is filed denying the assertions made by the appllcant. In view of the same, and having regard to the facts and circumstances of the case, the present arbitration application is allowed and Sri Ashok Jayawant Patil, Advocate, Bombay High Court, is appointed as sole arbitrator to adjudicate the claims and disputes between the parties to the application.

J The learne,d Arbitrator shall be entitled to fees as per the rates specified in the Fourth Schedule to the Act of 1996, inseted 5y Act 3 of 2016 with effect from 23-70-2015, which shall be borne by roth parties in equal sh a res.

Interlocutory rpplications pending, if any, shall stanr clc,sed. No order as to costs.

\ S J/-B.S,CHIRANJEEVI JC)INT R GISTRAR //TRUE COPYII SE,CTI OFFICER To

1. Sri Ashok Jayarvant Patil, Advocate, Bombay High Court, E rrol ment No.MAH/1333/'999, R/o.CALCOT HOUSE, 3'o Floor, 8/10, M F Shetty lvlarg, Mumbai-400001, Cell No.09820783872 Email: ashok j

2. One cc to Sri N Praveen Reddy, Advocate (OPUC)

3. One cc to Sri J.Ch Y.Narasimham, Advocate (OPUC)

4. Two CD Copies Kj patil(D hc tmail.com \ l---

L HIGH COURT DATED:31/1212019 F'ea::

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ORDER

ARBITRATION APPI'.lCAT|ON No 52 of 2014 ALLOWING THE A.P..

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