NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Special Leave Petition (C) No. 30863 of 2018

Nirmal Software Services Pvt. Ltd.       …Petitioner

Versus

Dr. Babasaheb Ambedkar  

Marathwada University & Ors.                …Respondents

ORDER    

INDU MALHOTRA, J.

The present Special Leave Petition has been filed challenging

Final Judgment & Order dated 18.09.2018 in Writ Petition No. 1413

of 2017 passed by the Hon’ble High Court of Judicature at Bombay,

Bench at Aurangabad.

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On 20.10.2012 the  Petitioner entered into  a  MoU with the

Respondent – University whereby the Respondent – University

entrusted the work of ‘Web Enabling’ and providing necessary web­

services to the Petitioner. The MoU was Amended on 07.04.2016

whereby Clause 3.5 was inserted, which reads as under :

“3.5 Dr. Bamu & NSSPL shall mutually decide, finalize and agree upon the Terms  &  Conditions including financial terms to handover the  Intellectual  Property Rights, Ownership Transfer to DR. BAMU as and when required and decided upon.”

The said MoU contained an arbitration clause which reads as

under :

“12. ARBITRATION 12.1  All and any disputes and claims arising out of or

relating in any manner to this MoU or a breach, termination, non­performance, interpretation or validly thereof, shall first be discussed in good faith by officers duly nominated for the purpose by each party, with a view to resolving the same.

12.2  All and  any  disputes  and claims as  aforesaid, which cannot be fully and satisfactorily resolved or settled by the parties as aforesaid, shall at the request of either party, be submitted at Aurangabad to arbitration. In such  a case, a joint request by NSSPL and BAMU will be made to an eligible and competent person to act as an Arbitrator. The appointment and the proceedings of arbitration will be subject to the provisions of Indian Arbitration  & Conciliation Act,  1996 as amended  from time to time.  The cost of appointing the arbitrator shall be equally shared by the parties herein.”

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Disputes arose  between the parties  with respect to certain

communication issued by the Respondent – University, whereby the

purchase order in favour of the Petitioner, executed in furtherance

of the MoU, was kept in abeyance.

The Petitioner filed Writ Petition No. 1413 of 2017 before the

High Court of Judicature at Bombay, Aurangabad bench praying for

a  Writ of  Mandamus directing the Respondent – University to

forthwith  make payment of the entire consideration under the

purchase  Order  dated  13.05.2019 and  declare the  action of the

Respondent – University in keeping the purchase order in abeyance

is illegal and void.

The  High  Court on  18.09.2018  dismissed the  Writ  Petition

filed by the  Petitioner  on the  ground that the  MoU entered  into

between the parties clearly contains an arbitration clause, which

must be given effect to.

Aggrieved, the Petitioner has filed the present SLP. During the

course of hearing, this Court vide Order dated 08.04.2019 recorded

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the submission of the Counsel for the Petitioner to refer the issue to

arbitration in terms of the MoU. On the basis of  this statement,

notice was issued to the Respondent.

On 08.07.2019, the parties jointly requested for the

appointment of  Mr. Justice Pratap  Hardas (Retd.) Judge of the

Bombay High Court, as the Sole Arbitrator.

On the  joint  request  of the  parties,  we appoint  Mr.  Justice

Pratap Hardas (Retd.) as the Sole Arbitrator, subject to the

declarations being made under Section 12 of the Arbitration and

Conciliation Act, 1996 with respect to independence and

impartiality, and the ability to devote sufficient time to complete the

arbitration within the period of 12 months. The parties have agreed

to pay fees to the Arbitrator in accordance with the Fourth Schedule

to the Arbitration and Conciliation Act, 1996 as amended. As per

the MoU, the seat/place of arbitration shall be Aurangabad.  

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A copy of this  Order be dispatched to  Mr. Justice Pratap

Hardas (Retd.). The  matter is disposed of accordingly. Pending

applications, if any, stand disposed of.  

…..……...........................J. (ABHAY MANOHAR SAPRE)

..….……..........................J. (INDU MALHOTRA)

New Delhi July 9, 2019.

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