Ncc Ltd. v. Posco Engineering And Construction India Pvt. Ltd. And ANR.

Digitally signed by PRAJAKTA SAGAR VARTAK Date:

2022.07.14 12:51:17 +0530 PRAJAKTA SAGAR VARTAK Prajakta Vartak

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION COMMERCIAL ARBITRATION APPLICATION NO. 301 OF 2021 NCC Ltd.

..Applicant Vs.

Posco Engineering and Construction India Pvt. Ltd. & Anr.

..Respondents ----- Mr. Kedar Wagle with Mr. Sagar Wagle i/b. Ms. Riddhi Pandit for Applicant.

Mr. Nausher Kohli with A. Agarwal and Ms. Areena Sharma for Respondent No.1.

Mr. Siddhartha Ronghe for Respondent No.2.

----- CORAM : G.S. KULKARNI, J.

DATE : JULY 12, 2022.

P.C.:

1.

At the outset, learned counsel for the applicant states that respondent no.2 is not party to the arbitration agreement and seeks leave to delete the name of respondent no.2. Prayer is accepted. Amendment be carried out during the course of the day. Re-verification is dispensed with.

2.

This is an application filed under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, "the Act") whereby the applicant has prayed for appointment of an arbitral tribunal for adjudication of the disputes and differences which have arisen between the parties under a Contract for Civil & Architectural Construction Work of India POSCO Maharashtra CRM Project dated 25 November, 2011. There is an arbitration agreement as contained in clause 18.2 on which there is no dispute.

3.

The case of the applicant is that the contractual work is completed and there is dispute between the parties in regard to the VAT liability in regard to which both the parties are already before the assessment authorities.

4.

The jurisdiction of this Court is very limited to the examination of the arbitration agreement on which there is no dispute. There is also invocation of the arbitration agreement by the applicant's notice dated 26 August, 2021 to which there is respondents' reply dated 27 September, 2021, inter alia contending that it was premature for the respondents to invoke the arbitration agreement. Such letter of the respondents was again replied by the applicant by its letter dated 25 October, 2021 disputing the contentions of the respondents in the reply dated 27 September, 2021. In my opinion, all these are contentions of the parties on merits.

5.

As there is an arbitration agreement between the parties as contained in clause 18.2 as noted above, this Court can appoint an arbitral tribunal keeping all contentions open to agitate before the arbitral tribunal. Hence the following order:-

ORDER

(i) Mr. Manoj S. Sanklecha, Former Judge of this Court is appointed as a sole Arbitrator to arbitrate the disputes and differences between the parties under the Contract for Civil & Architectural Construction Work of India POSCO Maharashtra CRM Project dated 25 November, 2011. (ii) The learned prospective sole arbitrator, before entering the reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this

Court, to be placed on record of this application with a copy to be forwarded to both the parties;

(iii) The fees payable to the arbitral tribunal shall be as prescribed under the Bombay High Court (Fees Payable to Arbitrators) Rules, 2018. (iv) At the first instance, the parties shall appear before the prospective arbitrator within 15 days from today on a date which may be mutually fixed by the prospective sole arbitrator; (v) All contentions of the parties are expressly kept open; (vi) The application is disposed of in the above terms. No costs. (vii) Office to forward a copy of this order to the learned Arbitrator on the following address:

"Mr. Manoj S. Sanklecha, Former Judge of this Court, Address:

311, Churchgate Chambers, Thakersey Road, New Marine Lines, Behind Aaykar Bhavan, Mumbai - 400 020.

Mobile: 9820065338 Email ID: manojssanklecha@gmail.com".

[G.S. KULKARNI, J.]