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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

ARBITRATION CASE (CIVIL) NO.2 OF 2015

TAIYO MEMBRANE CORPORATION PTY.  LTD.      ...PETITIONER

VERSUS

SHAPOORJI PALLONJI & CO.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 lodged by one Taiyo Membrane Corporation

Pty.  Ltd.  seeking  appointment  of  an  arbitrator  to  resolve

certain disputes that have arisen out of three sub-contracts

executed with the respondent in respect of works relating to

renovation  of  the  Jawaharlal  Nehru  Stadium,  New  Delhi.

The  said  works  were  awarded  to  the  respondent  by  the

C.P.W.D.

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2. The area of dispute is small  and narrow, namely, the

entitlement  of  the  petitioner  to  5%  of  his  claimed  dues

which,  according  to  the  petitioner,  has  been  wrongly

withheld by the respondent.  

3. The respondent has objected to the appointment of  an

Arbitrator  by the  Court,  inter  alia,  on the  ground that  the

contractual obligations incumbent on the petitioner/applicant

have not been fulfilled without which the demand for release

of  the  amount,  as  aforesaid,  is  not  justified.   As  the  said

objection itself raises an arbitrable issue the same need not

engage the attention of the Court.  Such attention, however,

has  to  be  focused  on  the  principal  objection  of  the

respondent.   The same is to the effect  that  the two of  the

sub-agreements were between Taiyo Membrane Corporation

and  the  respondent  Company  whereas  one  sub-agreement

was  between  Taiyo  Membrane  Corporation  (India)  and  the

respondent.  The  applicant  is  Taiyo  Membrane  Corporation

Pty.  Ltd.  which  is  not  a  party  to  any  of  the  said

sub-agreements.  Besides, it is contended that invocation of

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the arbitration clause was by the applicant who is not a party

to the agreements.  On the said basis, it is urged that there is

no valid invocation of the arbitration clause and consequently

there is no failure on the part of the respondent to appoint the

arbitrator so as to warrant an order from the Court under

Section  11(6)  of  the  Act.  It  is  also  urged  that  one  of  the

sub-agreements being between two Indian entities i.e. Taiyo

Membrane Corporation (India) and the respondent Company

any appointment  of  an  arbitrator  would  fall  outside  the

jurisdiction of this Court under Section 11(6) of the Act.

4. The above objections of the respondent have been sought

to be met by the petitioner by filing a rejoinder affidavit to

point out that the Letters of Intent with regard to the works

allotted under the sub-agreements were issued in favour of

Taiyo Membrane Corporation Pty.  Ltd.   That  apart,  several

correspondences  exchanged  between  the  respondent

Company and the Taiyo Membrane Corporation Pty. Ltd. with

regard to the works covered by the sub-contracts have also

been referred to and relied upon to contend that there is no

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doubt and ambiguity with regard to the fact that the  Taiyo

Membrane  Corporation  Pty.  Ltd.  and  Taiyo  Membrane

Corporation  are  one  and  the  same  entity.   Insofar  as  the

agreements executed by Taiyo Membrane Corporation (India)

is concerned, it is urged that the above position has also been

clarified by subsequent communications exchanged between

the respondent Company and Taiyo Membrane Corporation

Pty. Ltd. with respect to the work covered by the agreement in

which  one  of  the  parties  is  Taiyo  Membrane  Corporation

(India).

5. While  it  is  correct  that  there  is  some  confusion  with

regard to the description of the parties in the sub-agreements;

the legal notice(s); and the letter(s) of invocation; the L.O.Is.

issued  in  respect  of  the  works  and  the  correspondences

exchanged by and between the parties make it clear that the

applicant  Taiyo  Membrane  Corporation Pty.  Ltd.  and Taiyo

Membrane Corporation are one and the same entity and the

works  under  the  sub-agreements  had  been allotted  by  the

respondent to the said entity. In this regard it may also be

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relevant to note that under the Australian Corporation Act,

2001 (Section 57A) a Corporation includes a Company and a

proprietary  Company  Limited  by  shares  is  incorporated  as

Pty. Ltd.  

6. In the above circumstances the alleged mis-description

will not affect the maintainability of the present application.

As already observed, the Court does not find any ambiguity or

inconsistency in the description of parties so as to non-suit

the applicant-petitioner by dismissing its application on the

above basis. The ambiguity, if any, in the description of the

parties having been explained and the respondent Company

itself having issued L.O.Is. and having exchanged subsequent

correspondences with the applicant with regard to the works

under the sub-contracts, though executed in the name of the

Taiyo  Membrane  Corporation   and  Taiyo  Membrane

Corporation (India), the applicant's petition cannot be held to

be not maintainable as urged on behalf of the respondent.   

7. Having held as aforesaid and the remaining objections, as

noticed, being within the province of the Arbitrator the Court

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is inclined to grant the prayers made. Accordingly, Dr. Justice

M.K. Sharma, a former Judge of this Court is appointed as

the sole Arbitrator.  

8. All disputes including the disputes raised in the present

petition  are  hereby  referred  to  the  learned  sole  Arbitrator.

The learned Arbitrator shall be at liberty to fix his own fees/

remuneration/other  conditions  in  consultation  with  the

parties.   

9. Let this order be communicated to the learned Arbitrator

so  that  the  arbitration  proceedings  can  commence  and

conclude as expeditiously as possible.   

10. The Arbitration Petition is disposed of in the above terms.

................................J.    (RANJAN GOGOI)

NEW DELHI SEPTEMBER 09, 2015