HUAWEI TECHNOLOGIES CO. LTD. Vs STERLITE TECHNOLOGIES LTD.
Bench: RANJAN GOGOI
Case number: ARBIT.CASE(C) No.-000027-000027 / 2015
Diary number: 6459 / 2015
Advocates: DEVASHISH BHARUKA Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ARBITRATION CASE (CIVIL) NO.27 OF 2015
HUAWEI TECHNOLOGIES CO. LTD. ...PETITIONER
VERSUS
STERLITE TECHNOLOGIES LTD. ...RESPONDENT
J U D G M E N T
1. This application under Section 11(6) of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to
as “the Act”) has been filed seeking appointment of a Sole
Arbitrator in terms of clause 22.3 of the Supply Contract
between the parties which was entered into in the following
circumstances:
In March 2006, MTNL issued a tender for supply,
installation, testing, commissioning of Broadband Access
Network. Both the petitioner and the respondent together bid
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against the tender floated and the respondent acted as the lead
bidder. The contract was awarded in favour of the respondent
by the MTNL. On 9th April, 2007, the parties entered into a
Supply Contract for the aforesaid project. According to the
petitioner, though it had complied with all the terms and
conditions of the said supply contract and had
shipped/delivered all equipments on time, the respondent had
failed to make full payment of the amounts due and an amount
quantified at USD 13,390,000 is due and payable. The
petitioner sent a legal notice dated 28th November, 2014 calling
upon the respondent to make payment of the outstanding dues
along with interest thereon within seven days failing which it
was stated in the notice that the petitioner would be invoking
clause 22 of the Supply Contract which provided for arbitration
and will proceed to appoint Mr. Justice S.K. Dubey, a former
judge of the High Court of Madhya Pradesh as the sole
Arbitrator.
As no response was received to the aforesaid notice,
the petitioner by letter dated 29th December, 2014 appointed
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Shri Justice S.K. Dubey which appointment was accepted.
Thereafter the respondent raised a dispute with regard to the
reference to the arbitration and rejected the appointment of Shri
Justice S.K. Dubey as the sole Arbitrator.
In these facts the learned sole Arbitrator Shri Justice
S.K. Dubey by order dated 21st January, 2015 recused himself
from the proceedings. It is in the aforesaid circumstances that
the present application/arbitration petition has been filed
under Section 11(6) of the Act for appointment of a sole
Arbitrator.
2. A counter affidavit has been filed on behalf of the
respondent wherein it has been, inter alia, stated that upon
appointment of Shri Justice S.K. Dubey as the sole Arbitrator
the notice invoking the arbitration clause had spent its force;
Shri Justice S.K. Dubey having recused himself from the
proceedings the fresh appointment of a learned sole Arbitrator
has to be made by, once again, resorting to the provisions of
clause 22 of the Supply Contract and by following the
procedure prescribed therein. Certain other objections have
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also been raised on the merits of the dispute contending that
the petitioner had not fulfilled its obligations under the Supply
Contract so as to be entitled to the amounts as claimed.
3. The Court has heard the learned counsels for the
parties.
4. Under Section 15(2) of the Act in a situation where
the mandate of an arbitrator terminates, a substitute arbitrator
is required to be appointed according to the rules that were
applicable to the appointment of the arbitrator who is replaced.
In Yashwith Constructions (P) Ltd. Versus Simplex concrete Piles
India Ltd. and another [(2006) 6 SCC 204], the term 'rules'
appearing in Section 15(2) of the Act has been understood to be
referring to the provisions for appointment contained in the
arbitration agreement or any rules of any institution under
which the disputes are to be referred to arbitration. In the
present case, admittedly, there are no institutional rules under
which the disputes between the parties are to be referred to
arbitration and, therefore, the expression “rules” appearing in
Section 15(2) of the Act will have to be understood with
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reference to the provisions for appointment contained in the
Supply Contract.
5. Clause 22.3 of the Supply Contract which deals with
the matter may be extracted at this stage:
“22.3 All disputes, controversies or claims arising out of or in connection with or in relation to this Contract of its negotiation, performance, breach, existence or validity, whether contractual or tortuous, shall be referred to arbitration in accordance with the Indian Conciliation and Arbitration Act, 1996 and conducted by a single arbitrator to be appointed by the Parties by mutual consent. The cost of arbitration shall be shared by the Parties. The place of the arbitration shall be India and the applicable law in relation to the procedure of the arbitration shall be determined by reference to the law of the place of the arbitration is to be held. The arbitration proceedings shall be conducted in English language. The award of the arbitration shall be final and binding against the Parties hereto.”
6. Clause 22.3 of the Supply Contract contemplates
appointment of a sole arbitrator by the parties by mutual
consent. In a situation where the original arbitrator i.e. Shri
Justice S.K. Dubey had recused himself the substitute or new
arbitrator is required to be appointed according to the rules that
were applicable to the appointment of the original arbitrator.
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This is the mandate of Section 15(2) of the Act. It was,
therefore, incumbent on the petitioner to give notice and explore
the possibility of naming an arbitrator by mutual consent and
only on failure thereof the present application under Section
11(6) of the Act could/should have been filed. The above
recourse is required to be followed by virtue of the provisions of
Section 15(2) of the Act and the decision of this Court in
Yashwith Constructions (P) Ltd. (supra). Admittedly, the same
had not been followed. In these circumstances, the Court will
understand the present application/arbitration petition to be
premature. It is accordingly not entertained leaving it open for
the petitioner to act appropriately, if so advised, in terms of the
present order and thereafter seek its remedies as provided by
law.
7. The Arbitration Petition is disposed of in the above
terms.
……………………...............,J. (RANJAN GOGOI)
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NEW DELHI SEPTEMBER 04, 2015