M/S.FUGRO SURVEY (INDIA) PVT.LTD. Vs RAMUNIA INTERNATIONAL SERVICES LTD.
Bench: SURINDER SINGH NIJJAR
Case number: ARBIT.CASE(C) No.-000025-000025 / 2011
Diary number: 26309 / 2011
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IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
ARBITRATION PETITION NO. 25 OF 2011
M/S.FUGRO SURVEY (INDIA) PVT. LTD. Petitioner(s)
VERSUS
RAMUNIA INTERNATIONAL SERVICES LTD. Respondent(s)
O R D E R
1. This petition has been filed under
Section 11(6) of the Arbitration and Conciliation
Act, 1996 read with paragraph 3 of the Scheme framed
by Hon'ble the Chief Justice of India under Section
11(10) of the said Act for appointment of sole
arbitrator.
2. Despite service of notice, none appears on
behalf of the respondent.
3. The petitioner and the respondent had entered
into a Survey Contract on 8.4.2008 whereby the
petitioner agreed to perform various survey for the
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respondent as per terms and conditions of payment
prescribed under the said agreement. The survey was
necessary for the performance of the tasks in the
Main Contract.
4. The petitioner was a Sub-Contractor under
the respondent having necessary expertise,
capabilities and technical know-how to perform the
works required by the Contractor i.e. the respondent
herein, for providing adequate equipment and
personnel for such work. The specified work which
was required to be done by the sub-contractor is
contained in various Articles of the aforesaid
Survey Contract. Article 14 of the Survey Contract,
which provides for the mechanism for resolution of
any dispute that may arise between the parties
through arbitration, reads as under:
“ Article 14 – Arbitration/Law
14.1 This contract shall be governed by
the laws of the Republic of India.
14.2 Any dispute between the parties
arising in, under or out of this Contract,
unless otherwise amicably settled, shall be
resolved by arbitration in Mumbai, India in
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accordance with the Rules of conciliation
and Arbitration Act, 1996 or any subsequent
rules or amendments thereof. The decision
of/by the arbitrator shall be final and
binding upon both parties.”
5. It appears that disputes have arisen between
the parties. It is the claim of the petitioner that
the geographical survey was completed 100% and they
were carrying out Soil Sampling using drop core
which was completed to the extent of 53.8%. The
petitioner raised Invoice No.INV-MAR-08-02/03/409
dated 15th July, 2008 in the sum of USD 565614.98 for
the work done and thereafter vide letter dated 24th
July, 2008 reminded the respondent for payment but
there was no response from the respondent.
Subsequently, a legal notice was sent to the
respondent on 14.2.2009 calling upon the respondent
to make the payment of the aforesaid amount together
with interest at the rate of 12% per annum from the
date of each invoice till the date of payment.
6. In spite of the legal notice dated 14.2.2009,
no payment was received by the petitioner. Hence the
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petitioner issued legal notice dated 8.12.2010
invoking the arbitration clause. The petitioner also
proposed to appoint one Mr. Pawan Aggarwal as the
Arbitrator. The respondent, however, failed and
neglected to confirm the appointment of the
aforesaid Arbitrator. In fact, no reply to the
aforesaid legal notice has been received by the
petitioner. Therefore, the petitioner moved an
Arbitration Petition No.118 of 2011 in the High
Court of Judicature at Bombay seeking appointment of
an arbitrator. When the aforesaid petition came up
for hearing before the High Court on 5.8.2011, the
High Court permitted the petitioner to withdraw the
arbitration petition as the petitioner would have to
move this Court under Section 11(5) of the
Arbitration and Conciliation Act, 1996. It was in
these circumstances that the present arbitration
petition has been filed before this Court.
7. The Office Report indicates that the service
of notice in this matter is complete. However, in
spite of the notice having been served, none appears
on behalf of the respondent. The averments made in
the petition have remained un-controverted.
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8. In view of the above, this petition deserves
to be allowed and accordingly the arbitration
petition is allowed. I hereby appoint Mr. Justice
Arvind V. Savant, former Chief Justice of the Kerala
High Court, (residing at A/20, Marble Arch-A, 9,
Prithvi Raj Road, New Delhi-110011) as the sole
Arbitrator.
9. The learned arbitrator shall be at liberty to
fix his own remuneration and any other terms and
conditions for the arbitration as deemed fit and
proper, at his sole discretion. The seat of the
arbitration shall be in Mumbai.
10. Let a copy of this order be communicated to
the learned Arbitrator so that he may enter upon
reference as expeditiously as possible.
.....................J (SURINDER SINGH NIJJAR)
New Delhi; September 7, 2012.