Heligo Charters Private Limited, Through Its Authorised Representative Mr.Uday Deshmukh v. Hindustan Oil Exploration Company Limited

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 28.02.2022 Coram THE HONOURABLE MR. JUSTICE M.SUNDAR Heligo Charters Private Limited A Company incorporated under the Companies Act, 1956 Through its authorised representative Mr.Udhay Deshmukh Having its registered address at:

Hanger No.3A, Juhu Airport, S.V.Road, Vile Parle (West) Mumbai 400 056.

... Petitioner vs.

Hindustan Oil Exploration Company Limited A Company incorporated under the Companies Act, 1956 Having its registered office at:

HOEC House, Tandalja Road, Vadodra 390021 And its Corporate office at:

Lakshmi Chambers, 192, St.Mary's Road, Alwarpet, Chennai - 600 018.

... Respondent Prayer:

Arbitration Original Petition filed under Section 11(6)(b) of Arbitration and Conciliation Act, 1996 to appoint an arbitrator to adjudicate the dispute between the Petitioner and the Respondent in terms 1/16

of Clause 31.1 of the Contract bearing No.B80C20A0020 dated November 15, 2019.

For Petitioner :

Mr.Bhavesh Parmer for Mr.Rahul Gaikwad For Respondent :

No Appearance

O R D E R

Read this in conjunction with and in continuation of earlier proceedings made in the previous listing on 11.02.2022 which reads as follows:

'Captioned 'arbitration original petition' [hereinafter 'said OP' for the sake of convenience] has been presented in this Court on 20.01.2022 under Section 11(6)(b) of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity.

2. In the virtual Court today, Mr.Bhavesh Parmer, learned counsel representing Mr.Rahul Gaikwad, learned counsel on record for the petitioner is before me. Learned counsel submits that the arbitration agreement between petitioner and respondent Company i.e., arbitration agreement within the meaning of Section 2(1)(b) read with Section 7 of A and C Act is in the form of a clause in a 'contract dated 15.11.2019 is 2/16

captioned CONTRACT FOR PROVISION OF HELICOPTER SERVICES' [hereinafter 'said contract' for the sake of convenience and clarity]. Learned counsel draws the attention of this Court to Clause 31 and more particularly 31.1 of said contract and submits that the same serves as an arbitration agreement between petitioner and respondent company.

3. Learned counsel submits that said contract ran into rough weather and turbulence resulting in a trigger notice dated 21.08.2021 from petitioner-Company. This evoked a reply dated 20.09.2021 from respondent is learned counsel's say.

4. Learned counsel submits that this is a case where the parties have agreed for procedure for appointment of arbitrators and it is a case where the appointment procedure has hit a deadlock. In this regard, learned counsel submits that petitioner and respondent have nominated respective arbitrators and the two nominated arbitrators have not been able to agree on the third arbitrator. It is pointed out that the arbitration agreement between the parties provides for arbitration by a three member 'Arbitral Tribunal' ['AT']. An electronic mail dated 13.12.2021 (Page No.79 of typed set of papers) is being referred to say that there is a deadlock.

5. Learned counsel also points out that the venue is Chennai and therefore, this is the Jurisdictional Court.

6. Arbitration clause, more particularly, Clause 31.1 of said contract refers to Indian Arbitration and Conciliation Act, 3/16

1996. This Court is informed that this is the typographical error and request is made to read the same as A and C Act.

7. Issue notice to respondent returnable in a fortnight i.e., returnable by 25.02.2022. Private notice permitted. Private notice through electronic modes of services (subject of course to proof being demonstrated) also permitted.

8. List on 25.02.2022.'

2.The short forms, abbreviations used in the previous proceedings shall continue to be used in this order also. To be noted, the previous proceedings shall be read as an integral part and parcel of this order. 3.Mr.Bhavesh Parmer, learned counsel for petitioner who is before this virtual Court submits that pursuant to aforementioned earlier proceedings, private notice has been sent to the lone respondent and lone respondent has been duly served. To be noted, an Affidavit of Service (AOS) has been filed/placed before this Court as part of the case file and a scanned reproduction of the same is as follows: 4/16

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4.The above AOS makes it clear that the sole respondent has been duly served on 18.02.2022 but there is no representation for the sole respondent today. This Court is informed by the Registry that no counsel has entered appearance on behalf of the lone respondent. This means that the lone respondent has not chosen to come before this Court to enter upon any disputation or disagreement about the existence of an arbitration agreement between the parties i.e., between petitioner and respondent. 5.The scope of a legal drill under Section 11 of A and C Act is laregly controlled by sub section (6-A). This principle was laid down by the Hon'ble Supreme Court in Mayavati Trading case law i.e., Mayavati Trading Pvt. Ltd vs Pradyuat Deb Burman reported in 2019 (8) SCC 714. The relevant paragraph in Mayavati Trading case law is paragraph No.10 and the same reads as follows:

'10. This being the position, it is clear that the law prior to the 2015 Amendment that has been laid down by this Court, which would have included going into whether accord and satisfaction has taken place, has now been legislatively overruled. This being the position, it is difficult to agree with the reasoning contained in the aforesaid 13/16

judgement, as Section 11(6-A) is confined to the examination of the existence of an arbitration agreement and is to be understood in the narrow sense as has been laid down in the judgement in Duro Felguera'

6.As the respondent has not chosen to come before this Court and raise any disputation or disagreement regarding the existence of arbitration agreement between the parties, this Court deems it appropriate to accede to the prayer for constitution of an Arbitral Tribunal. 7.Though the arbitration agreement between the parties contemplates arbitration by a three member Arbitral Tribunal, learned counsel submits that this Court can abridge the size of the Arbitral Tribunal and appoint a sole arbitrator. This position i.e., the position that size of the Arbitral Tribunal can be abridged/reduced by a Section 11 Court is now beyond any pale of discrepancy.

8.The earlier proceedings made in the previous listing on 11.02.2022 shall be read as an integral part and parcel of this order. 14/16

9.Owing to the narrative thus far, this Court appoints Hon'ble Mr.Justice G.Rajasuria, Former Judge, High Court of Madras residing at No.31, III Cross Street, Brindavanam, Puducherry - 605 013 [Mobile : 9445000864] as sole arbitrator to enter upon reference, adjudicate the arbitrable disputes that have arisen between the petitioner and the respondent. Hon'ble Sole Arbitrator is requested to conduct the arbitration in Madras High Court Arbitration Centre under the aegis of this Court (MHCAC) in accordance with the Madras High Court Arbitration Proceedings Rules, 2017 and Hon'ble Arbitrator's fee shall be as per Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrator's Fees), Rules 2017.

10.Captioned Arb.O.P is disposed of in the aforesaid manner. There shall be no order as to costs.

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M.SUNDAR, J., pgp Note: Registry is directed to communicate a copy of this order forthwith to 1.Mr.G.Rajasuria, Former Judge, High Court of Madras, No.31, III Cross Street, Brindavanam, Puducherry - 605 013 [Mobile : 9445000864] 2.The Director Tamil Nadu Mediation and conciliation Centre -cum- Ex Officio Member, Madras High Court Arbitration Centre Madras High Court, Chennai - 600 104.

Dated : 28.02.2022 16/16