Controls P. Ltd. Vs. Sarku Engineering Services SDN BHD  INSC 1930 (11
REPORTABLE IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION ARBITRATION APPLICATION NO.
6 OF 2008 Standard Corrosion Controls Pvt. Ltd. .. Applicant -versus- Sarku
Engineering Services SDN BHD ..
MARKANDEY KATJU, J.
means of this Arbitration Application the applicant has prayed for appointment
of an arbitrator under Section 11(5) of the Arbitration and Conciliation Act,
1996 (hereinafter referred to as the Act) for resolution of the disputes
between the parties arising out of the agreement dated 21.2.2006.
learned counsel for the parties and perused the record.
applicant is a company registered under the Indian Companies Act, having its
registered office at Thane, Maharashtra. The respondent is a company
incorporated under the law of Malaysia having its registered office at Miri,
Sarawak, Malaysia. The respondent had been awarded a contract of 26 Well
Unmanned Platforms by the Oil & Natural Gas Corporation (in short `ONGC').
The applicant had been short-listed as one of the potential sub-contractors for
painting workscope package and was requested to submit its quotations. On going
through the quotation of the applicant, the respondent issued a contract dated
21.2.2006. Copy of the agreement is at Annexure A-4 to this application.
the applicant received a letter dated 8.9.2006 from the respondent stating that
they had no choice but to exercise Article VII, the Suspension and Termination
Clause, of the Contract Agreement with immediate effect on the alleged plea
that the respondent was unable to furnish bank guarantee and feedback
confirmation of the applicant's readiness for work. This resulted in a dispute
between the parties and the applicant wrote a letter dated 14.4.2007 invoking
the arbitration clause in the agreement between the parties, being Article X.
The applicant called upon the respondent to send a panel of eminent persons to
be selected to act as a Sole Arbitrator. The applicant also mentioned in the
said letter that in the event the respondent fails to send the list as required
by the applicant, the applicant shall approach the High Court to appoint the
Sole Arbitrator for resolving the dispute. When the respondent did not send any
reply, the applicant wrote a letter dated 11.10.2007 to the respondent and had
proposed the names of eminent prospective arbitrators and asked the respondent
to select one of them as the Sole Arbitrator to adjudicate the dispute. The
applicant also mentioned in the letter dated 11.10.2007 that if the respondent
fails to do so, the applicant will then approach the Supreme Court for getting
the arbitral forum constituted.
respondent replied by email dated 16.10.2007 and stated that in Article X of
the Arbitration it was mentioned that in case of any dispute or difference
between the parties regarding the contract, the matter should be settled, as
far as possible, by mutual consultation and consent, failing which by
arbitration to be held at Mumbai, applying the Arbitration Rules of the
International Chamber of Commerce (hereinafter referred to as the ICC).
Article X states as
Arbitration Any dispute or difference in view regarding this
CONTRACT shall be
settled, in so far as is possible, by mutual consultation and consent, failing
which by arbitration to be held at Mumbai, India applying the Arbitration Rules
of the International Chamber of Commerce by a single arbitrator."
the parties could not agree, the applicant applied to this Court under Section
11(5) of the Act for appointment of an Arbitrator.
counter-affidavit has been filed by the respondent and I have perused the same.
The respondent has relied on Article X of the Agreement dated 21.2.2006 between
the parties and has urged that the arbitration has to be held at Mumbai but by
applying the Arbitration Rules of the ICC. As per the Rules of Arbitration of
ICC, the party who wishes to have recourse to arbitration under the said Rules
is required to request for arbitration to the ICC Secretariat. The respondent
submitted that the applicant has not followed that procedure for appointment of
an Arbitrator because it has not submitted any request to the ICC Secretariat.
Instead, the applicant has rushed to this Court without following the procedure
mentioned in Article X of the Arbitration Agreement.
to the counter-affidavit is the Rules of the ICC and I have perused the same.
Admittedly, the applicant has not made any request for arbitration to the ICC
Secretariat. Hence, in my opinion, this application is not maintainable at all.
is no dispute that the applicant had, with open eyes, signed the contract dated
21.2.2006, which contains Article X, quoted above.
counsel for the applicant submitted that the Arbitration Rules of the ICC
cannot prevail over the Parliamentary law, which is the Arbitration and
Conciliation Act, 1996. In my opinion, it is true that a statute overrides the
contract, but it has to be noticed that Section 11(2) of the Act states that
subject to sub-section (6), the parties are free to agree on a procedure for
appointing the arbitrator or arbitrators. Admittedly, the conditions mentioned
in sub-section (6) of Section 11 are not attracted in this case. Hence, the
procedure to appoint an arbitrator agreed upon by the parties will be
already stated above, the parties had agreed that any dispute between them
shall be settled as far as possible by mutual consultation and consent, failing
which by arbitration to be held at Mumbai applying the Arbitration Rules of the
ICC. In my opinion, the applicant has to apply to the Secretariat of the ICC,
as mentioned in the Arbitration Rules of the ICC, and it cannot approach this
Court for appointment of an Arbitrator. No doubt, the arbitration will have to
be held at Mumbai, but the entire procedure of appointment of the Arbitrator
has to be in accordance with the Arbitration Rules of the ICC, which requires
that first a request has to be made to the Secretariat of the ICC. Admittedly,
the applicant has not approached the ICC Secretariat. Hence, in my opinion, the
application filed by the applicant herein, is not maintainable at all.
Court in a series of decisions has held that such an application/petition
without approaching the authority nominated and agreed upon by the parties is
not maintainable vide Iron & Steel Co. Ltd. vs. Tiwari Road Lines 2007(5)
SCC 703, Rite Approach Group Ltd. vs. Rosoboronexport 2006(1) SCC 206 etc.
scheme of the Act is that under Section 11(2), the parties are free to agree on
a procedure for appointing an Arbitrator subject to the provisions of Section
11(6). A petition under Section 11(5) of the Act would not lie if there is any
agreement between the parties providing for the procedure for appointment of an
arbitrator. In the present case there is Article X of the agreement (quoted
counsel for the applicant has relied upon Article IX of the Agreement, which
" Article IX
This CONTRACT shall
be governed by the laws of India. The CONTRACTOR shall be responsible to keep
itself informed and comply with all laws, rules, regulations, standards, codes
and the like applicable to the WORKS, CONTRACTORS and its subcontractors and
CONTRACTOR shall protect, indemnify and hold
ONGC, SARKU, their
AFFILIATES and associated companies and their stockholders, directors, agents,
employees, and representative of each of the aforementioned parties harmless
from and against all liabilities for any breach thereof attributable to
CONTRACTOR or its
my opinion, Article IX has no relevance to the controversy in this case as it
only says that the contract shall be governed by the laws of India.
The laws of India
would mean the Contract Act, Limitation Act, Specific Relief Act etc.
Article/Clause IX does not deal with the procedure by which the arbitrator has
to be appointed. That is governed by Clause X.
view of the above, this Arbitration Application is not maintainable and it is