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2013 (2) TMI 100 - HC - Indian LawsExtension of time for delivery of Snow Mobiles - appellant-petitioner heavily banked upon Custom Duty Exemption Certificates issued by GOC to argue that the time stood extended - whether the issue raised in the instant proceedings was covered by the ambit and scope of arbitration clause & parties must be relegated to arbitration - Held that:- Nothing to accept the argument because the last request for extension of time was made on 05.05.2011 to extend the period up to 20.09.2011. The Snow Mobiles were not delivered by 20.09.2011 and were actually delivered on 07.10.2011, therefore, it cannot be presumed that there was any extension beyond 20.09.2011. More so when the stipulation contained in Clauses 3 and 9 of the Supply Order clothe the respondents with the unilateral right to cancel the Supply Order. Perusal of Clauses 3 and 9 of the Supply Order show that the Supply Order could be cancelled unilaterally by the buyer in case items were not received within the delivery period and that the extension of delivery period was left to the sole discretion of the respondents which was further subject to liquidated damages. Therefore, on facts there is no room to conclude that in the absence of any express communication extending the period of delivery, it can by implication or by necessary intendment be inferred that there was extension of delivery period in accordance with stipulations made in clause 3 read with clause 9. In any case the prayer was made for extension up to 20.09.2011 but the delivery could be made only on 07.10.2011 which again is beyond the period for which extension was sought. A perusal of clause 3 of Part III of the Standard Conditions of the Supply Order leaves no manner of doubt that there is intention of the parties to settle such difference by arbitration. The parties have agreed in writing to be bound by arbitration and the parties are ad idem. A perusal of clause further shows that the parties have agreed to settle all disputes or differences arising out of or in connection with the Supply Order by bilateral discussions. The very fact that the appellant-petitioner has filed the writ petition relatable to the instant appeal would itself show that there is a dispute with regard to the supply of Snow Mobiles by the appellant-petitioner to the respondents. It thus follows that the arbitration clause in the present case satisfies all essential elements. Once the aforesaid factual position is not in doubt then the writ petition would not be maintainable. See Empire Jute Co. Ltd and ors v. The Jute Corporation of India Ltd. And anr [2007 (10) TMI 545 - SUPREME COURT OF INDIA] In all commercial contracts of the nature in question in the present case, it is not possible to conclude that there is any violation of any rule of law of such a nature that equitable jurisdiction of the High Court under Article 226 is required to be exercised. The parties are relegated to the remedy of arbitration as provided by the arbitration clause.
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