M/S. ZHEJIANG BONLY ELEVATOR GUIDE RAIL MANUFACTURE CO. LTD. versus M/S. JADE ELEVATOR COMPONENTS

Citation: [2018] 11 S.C.R. 645 · Decided: 14-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A
B
C
D
E
F
G
H
645
M/S. ZHEJIANG BONLY ELEVATOR GUIDE RAIL
MANUFACTURE CO. LTD.
v.p
M/S. JADE ELEVATOR COMPONENTS
(Arbitration Petition (Civil) No. 22 of 2018)
SEPTEMBER 14, 2018
[DIPAK MISRA, CJI., A.M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Arbitration and Conciliation Act, 1996: s. 11(5) – Arbitration
petition under – Seeking constitution of an arbitral tribunal with a
sole arbitrator to adjudicate the claims of petitioner under the
Commission Processing Contract – Dispute resolution clause
between the parties that the disputes to be settled through
consultation and in case the consultation fails, then by arbitration
or court – Held: Intention of the parties apparent from the dispute
resolution clause, is that efforts have to be made to settle the disputes
in an amicable manner and, therefore, two options are available,
either to go for arbitration or for litigation in a court of law – Thus,
there is an option and the petitioner has invoked the arbitration
clause – In view thereof, former Judge of the Supreme Court,
appointed as sole Arbitrator to arbitrate upon the disputes which
have arisen between the parties – Arbitrator to complete arbitration
proceedings as per the Arbitration & Conciliation (Amendment) Act,
2015 – Arbitration & Conciliation (Amendment) Act, 2015.
INDTEL Technical Services Private Limited v. W.S. Atkins
Rail Limited (2008) 10 SCC 308 – referred to.
Case Law Reference
(2008) 10 SCC 308
referred to
Para 8
CIVIL ORIGINAL JURISDICTION: Arbitration Petition (Civil)
No. 22 of 2018.
Under Section 11(5) of the Arbitration and Conciliation Act, 1996
for appointment of Arbitrator under Clause 15 of the Commission
Processing Contract dated 11.09.2014.
                                                    645
[2018] 11  S.C.R. 645
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2018] 11 S.C.R.
Ms. Nandini Gidwaney, Mudit Sharma, Advs. for the Petitioner.
D. N. Ray, Lokesh K. Choudhary, Ms. Disha Ray, Dilip Kumar
Nayak, Mrs. Sumita Ray, Advs. for the Respondent.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI 1. In the instant arbitration petition,
preferred under Section 11(5) of the Arbitration and Conciliation Act,
1996 (for brevity, ‘the Act’), the petitioner seeks for constitution of an
arbitral tribunal with a sole arbitrator to adjudicate the claims of the
petitioner under the Commission Processing Contract dated 11.09.2014
and to pass such further order as may be deemed fit and proper in the
facts and circumstances of the case.
2. The petitioner, company incorporated under the laws of People’s
Republic of China having its office at Sanquiao Village, Fuchun Street,
Fuyang, China, is engaged in the business of, inter alia, exporting and
supplying high quality elevator guiderails, fish-plates, accessories and
allied goods.  The respondent, a partnership firm based in India having
its office at Plot No.455, Road No.11, “A” Cross Road, GIDC, Kathwada,
Ahmedabad – 382430, Gujarat, is engaged in the business of supplying
elevator components for use in the modernization of existing lifts and the
new design of the elevator.
3. The contract, namely, Commission Processing Contract
(hereinafter referred to as ‘the Contract’) was entered into between the
parties on 11.09.2014 in respect of supply of certain products under the
Contract.  In the course of performance of the Contract, as certain
differences had arisen and the parties were unable to amicably settle
the disputes which fell within the scope of the arbitration clause, the
petitioner appointed Justice V.S. Agarwal, former Judge, High Court of
Judicature at New Delhi as the sole arbitrator.  On 30.03,2018, the
petitioner called upon the respondent to consent to the appointment of
the sole arbitrator within a period of thirty days from the receipt of the
notice. The respondent received the said notice on 31.03.2018 and the
respondent in its reply dated 05.04.2018 refused to concur and consent
to the appointment of the sole arbitrator.  Because of the aforesaid
situation, the petitioner has been compelled to move this Court for
appointment of the sole arbitrator.  When the matter was listed before
this Court after service of notice, the learned counsel for the respondent
has placed reliance on the reply dated 05.04.2018 given by the counsel
A
B
C
D
E
F
G
H
647
for the respondent.  In the said reply, the facts asserted by the petitioner
have been disputed.  That apart, it has been stated that the claims put
forth are beyond the provisions of th

Excerpt shown. Read the full judgment & AI analysis in Lexace.