Schindler India Pvt. Ltd. v. Moonland Builders Pvt. Ltd.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 324 OF 2014 Schindler India Private Limited ...

Applicant

Versus

Moonland Builders Private Limited ...

Respondent Ms. Shamika Kulkarni i/b. Navdeep Vora and Associates for the Applicant. None for the Respondent.

CORAM

: S.J. KATHAWALLA, J.

DATED : 14 TH JANUARY, 2015 P.C.

1.

The Applicant - Schindler India Private Limited has filed the above Arbitration Application against the Respondent - Moonland Builders Private Limited under section 11 of the Arbitration and Conciliation Act, 1996 (the Act) for appointment of a sole Arbitrator to resolve the disputes arisen between the parties under the contract dated 17th April, 2012 (Exhibit-C to the Application).

2.

None appear for the Respondent though served. 3.

The Applicant is in the business inter alia of rendering installation, commissioning, testing and maintenance services for Schindler Elevators and other allied machines. The Respondent is engaged in the business of real estate developers. 4.

According to the Applicant, under a Contract executed by and

between the Applicant and the Respondent dated 17th April, 2012, the Respondent placed an order with the Applicant to supply and install one elevator, to be installed in the residential project of the Respondent at Sukhmani Cooperative Housing Society, Mumbai. The Commercial Terms and Conditions entered into by and between the parties, are at page 29 of the Application. Clause 18 of the said terms and conditions pertains to arbitration and is reproduced hereunder :

"18. Arbitration If any dispute, controversy or claim between the parties arises out of or in connection with this Agreement, including the existence, breach, termination or validity thereof (Dispute), the parties shall use all reasonable endeavors to negotiate with a view to resolving the Dispute amicably. 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 amicably within 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. Any arbitral award shall be final and binding on the parties. The seat of the arbitration shall be Mumbai. The language of the arbitration shall be English. Jurisdiction for purpose of the Arbitration and Conciliation act, 1996 shall be

Mumbai".

5.

According to the Applicant, since the Respondent failed and neglected to make full payment as agreed, the Applicant through its Advocate's letter dated 16th June, 2014 (Exhibit-K to the Application) was compelled to invoke Clause 18 of the Commercial Terms and Conditions of the said Contract dated 17th April, 2012 and nominated Ms. Shruti Desai, Advocate, High Court as a sole Arbitrator for resolution of disputes, which arose between the Applicant and the Respondent. However, the Respondent failed and neglected to respond to the said letter dated 16th June, 2014 despite having received the same on 17th June, 2014. The Applicant therefore filed the present Application under section 11 of the Act.

6.

From the aforestated facts, it is clear that there exists a valid agreement between the parties to have their disputes, arising out of the contract dated 17th April, 2012 (Exhibit-C to the Application) referred to arbitration. The Applicant has invoked the arbitration agreement by its letter dated 16th June, 2014. However, the Respondent failed to respond to the said letter dated 16th June, 2014.

7.

It is therefore clear that the parties have failed to name any person to be appointed as a sole Arbitrator to resolve their disputes. Hence, the following order :

i.

Mr. Shyam Kapadia, Advocate is appointed as a sole Arbitrator to decide the disputes of the Applicant and the Respondent arising out of the contract dated 17th April, 2012.

The above Arbitration Application is accordingly disposed of. (S.J. KATHAWALLA, J.)