NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
ARBITRATION PETITION NO. 23 OF 2015
PURPLE INDIA HOLDINGS LTD. …PETITIONER
VERSUS
DRILLING & OFFSHORE PTE. LTD. …RESPONDENT
O R D E R
T.S. THAKUR, CJI.
1. In this petition under Section 11(6) of the Arbitration and
Conciliation Act, 1996 the respondent has not appeared to contest the
prayer for appointment of an arbitrator in terms of the arbitration clause
found in Engagement Letter dated 24th October, 2013. The Clause reads as
under:
“12. Jurisdiction & Dispute Resolution: This Engagement Letter shall be
governed by and construed in accordance with the laws of India. The
parties agree that any legal action or proceedings arising out of or in
connection with this Engagement Letter may be brought only in the Court of
Mumbai.
Any and all disputes, controversies or claims (the “Dispute”) arising out
of or in connection with this Engagement Letter, including any Dispute
regarding the validity, interpretation, implementation or alleged breach of
any provision of this Engagement Letter shall be settled amicably by mutual
consensus, failing which by arbitration to be conducted in accordance with
the provision of the Indian Arbitration and Conciliation Act, 1996, as
amended (the “Arbitration Act”). Arbitration shall be held in Mumbai,
India.
The Company shall appoint one arbitrator and Purple shall appoint one
arbitrator and the two arbitrators shall appoint the third or the presiding
arbitrator. In the event that Purple or the Company fails to appoint an
arbitrator4 or the arbitrators fail to appoint the third arbitrator as
provided herein, such arbitrator(s) shall be appointed in accordance with
the Arbitration Act. The arbitration proceedings shall be conducted and
the award shall be rendered in the English language. The award rendered by
the arbitrator or arbitrators shall be final, conclusive and binding on all
parties to this Engagement Letter and shall be subject to enforcement in
any court of competent jurisdiction. Each party shall bear the cost of
preparing and presenting its case, and the cost of the arbitration,
including fees and expenses of the arbitrators, shall be shared equally by
the parties, unless the award otherwise provides. Subject to the foregoing
arbitration provision, the court of Mumbai shall have exclusive
jurisdiction with respect to any dispute.”
2. The petitioner’s case is that by letter dated 28th January, 2015 the
respondent was called upon to name an Arbitrator for adjudication of the
disputes that have arisen between them but the respondent has failed to do
the needful, leaving no alternative for the petitioner except to seek the
appointment of an Arbitrator in terms of Section 11(6) of the Act from this
Court.
3. We have heard learned counsel for the petitioner. The averments made
in the petition must, in the absence of any counter from the respondent, be
taken to be correct at least for the purposes of deciding whether the
matter ought to be referred to an Arbitrator. This is especially so when
the averments are supported by an affidavit filed by the petitioner. In
that view, therefore, we see no reason to decline the prayer for
appointment of an Arbitrator made by the petitioner. We, accordingly,
appoint Hon’ble Mr. Justice H.S. Bedi, former Judge of the Supreme Court of
India as the sole Arbitrator to adjudicate upon the disputes that have
arisen between the parties. The Arbitrator shall issue notices to the
parties in connection with the arbitral proceedings. He is left free to
determine his fee. We make it clear that we have expressed no opinion on
the merits of the case which aspect is left open for the parties to urge
before the worthy Arbitrator. No costs.
.…………….……………….CJI [T.S. Thakur]
..…………………….………….J.[R. Banumathi]
…………………..…….……….J. [Uday Umesh Lalit]
New Delhi;
March 30, 2016
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