Sai Regency Power Corporation Private Limited( In Corporate Insolvency Resolution Process Under v. Oil And Natural Gas Corporation Limited,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.12.2019 Coram THE HONOURABLE MR. JUSTICE M.SUNDAR Sai Regency Power corporation Private Limited (In Corporate Insolvency Resolution Process under the Insolvency and Bankruptcy Code, 2016) 8-2-293/82/A/431/A, Road No.22, Jubilee Hills Hyderabad - 500 033 Rep. By Resolution Professional Mr.G.Ramachandran ... Petitioner vs.
Oil and Natural Gas Corporation Limited Cauvery Asset, Neravy Office Complex Karaikal, Puducherry - 609 604 ... Respondent Original Petition filed under Section 11 (6) of the Arbitration and Conciliation Act, 1996, to appoint the Respondent's nominee arbitrator and presiding arbitrator to adjudicate upon the disputes arising out of the Gas Supply Agreement dated 19.04.2017 between the petitioner and the Respondent.
For Petitioner :
Mr.Anirudh Krishnan For Respondent :
Ms.P.Pooja for M/s.Giridhar & Sai 1/11
ORDER
Mr.Anirudh Krishnan, learned counsel on record for petitioner and Ms.P.Pooja of M/s.Giridhar and Sai (Law Firm) on record for the sole respondent are before this Court.
2. Instant 'Original Petition' (hereinafter 'OP' for the sake of brevity) has been filed under Section 11 of 'The Arbitration and Conciliation Act, 1996' ('A & C Act' for the sake of brevity) with a prayer for appointment of arbitrators.
3. The task of disposing of this petition has become fairly simple owing to the stated position of the parties to this OP and the trajectory of the hearing. In other words, there is consensus regarding constitution of Arbitral Tribunal. Therefore, it is not necessary to dilate much on facts. Suffice to say that the Arbitration Agreement between the parties in the instant OP, namely the petitioner and respondent is in the form of a covenant in a contract captioned 'Gas Supply Agreement dated 09.03.2017' (hereinafter 'said Agreement' for the sake of brevity and clarity).
4. Both the learned counsel before this Court submit without any disputation or contestation that Article 16 of said Agreement captioned 2/11
'DISPUTE RESOLUTION' and more particularly Article 16.1 to 16.14 is the arbitration agreement between the parties, being arbitration agreement within the meaning of Section 7 of A & C Act.
5. For the purpose of clarity and specificity, this Court deems it appropriate to extract entire Article 16, which reads as follows: 3/11
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6. Adverting to trigger notice or in other words, notice invoking arbitration being notice dated 27.06.2019, it is pointed out that petitioner has nominated as arbitrator Hon'ble Mrs.Justice K.B.K.Vasuki (Retd.), Plot No.394, 11th Avenue (Next to Panaiyur Bharat Petrol Bunk), See Shore Town, Panaiyur, ECR, Chennai - 119.
7. Referring to written instructions, learned counsel for respondent submits that the respondent has nominated as arbitrator Hon'ble Mr.Justice Suresh Kantilal Shah (Retd), No. 301, Siddhart Co-operative Housing Society, Madhusudhan Kelkar Marg, Koanagar, Bandra, East Mumbai - 400 051. 8/11
8. This Court reminds itself of Mayavati Trading Pvt. Ltd., Vs. Pradyuat Deb Burman reported in (2019) 8 SCC 714). Relevant paragraph is Paragraph 10, which 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 judgments, 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 judgment in Duro Felguera SA.'
(underlining made by this Court to supply emphasis and highlight)
9. This takes us to Duro Felguera SA principle being Judgment of Hon'ble Supreme Court in Duro Felguera, S.A. versus Gangavaram Port Limited reported in (2017) 9 SCC 729. Relevant paragraphs are Paragraphs 47 and 59 and the same read as follows: '47. What is the effects of the change introduced by the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as 'the 2015 Amendment' ) with particular reference to Section 11(6) and the newly added Sectin 11(6-A) of the Arbitration and Conciliation Act, 1996, (hereinafter referred to as "the 1996 Act") is the crucial question arising for consideration in this case.' '59. The scope of the power under Section 11 (6) of the 1996 Act was considerably wide in view of the decisions in SBP and Co. (supra) and Boghara Polyfab (supra). This position continued till 9/11
the amendment brought about in 2015. After the amendment, all that the Courts need to see is whether an arbitration agreement exists - nothing more, nothing less. The legislative policy and purpose is essentially to minimize the Court's intervention at the stage of appointing the arbitrator and this intention as incorporated in Section 11 (6A) ought to be respected. '
10. Therefore, Hon'ble Mrs.Justice K.B.K.Vasuki (Retd.) and Hon'ble Mr.Justice Suresh Kantilal Shah (Retd) are appointed as arbitrators, who in turn shall appoint a Presiding Arbitrator, which will result in constitution of three member Arbitral Tribunal. Thereafter, three Arbitral Tribunal shall enter upon reference.
Instant OP ordered on above terms. No costs.
18.12.2019 Speaking order: Yes/No Index: Yes/No gpa Note: Registry is directed to communicate this order to Hon'ble Mrs.Justice K.B.K.Vasuki (Retd.), at Plot No.394, 11th Avenue (Next to Panaiyur Bharat Petrol Bunk), See Shore Town, Panaiyur, ECR, Chennai - 119 and Hon'ble Mr.Justice Suresh Kantilal Shah (Retd) at No. 301, Siddhart Co-operative Housing Society, Madhusudhan Kelkar Marg, Koanagar, Bandra, East Mumbai - 400 051.
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M.SUNDAR.J., gpa 18.12.2019 11/11