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2023 (3) TMI 938 - HC - Indian LawsSeeking attachment of amount lying in the hands of AWHO who is indebted to pay the amount in order to enable the respondent to release the amount in favour of the petitioner - Existence of Arbitrable Disputes - Forum shopping - Notice of Invocation under Section 21 of Arbitration and Conciliation Act, 1996. Existence of Arbitrable Disputes - HELD THAT:- In the present case, though a proceeding may have been initiated by the petitioner before the NCLT asserting that there is an admitted debt as has been pointed out by the respondent, but a mere assertion would not make it into an admitted liability especially when the respondent has been refuting it at every forum and in every proceeding - It is quite evident that there is consistent stand of the respondent challenging the amounts claimed by the petitioner. Clearly, there are arbitrable disputes in regard to the claimed amounts and the objection taken by the respondent in regard to non-existence of arbitrable disputes, is not tenable. Forum Shopping - HELD THAT:- It can be seen from the various proceedings which have been initiated by the petitioner that different amounts had become due and payable at different times and also interest component which was being claimed, was a variable. The petitioner has given explanation for claiming the amounts before various forums depending upon when it had approached that particular forum. Merely because the petitioner has approached different forums for redressal of its claims, cannot be said to be a ground to hold that this is a case of forum shopping.Each of the provision invoked by the petitioner has its own individual scope and it cannot be said that resort to one has the effect of ousting the other forums or that it is a case of forum shopping - In the present case, the scope of enquiry in the proceedings before the NCLT and before the Arbitrator is absolutely distinct. Merely because the petitioner approached NCLT before seeking appointment of Arbitration, it cannot be said that he was indulging in Forum Shopping. Notice of Invocation under Section 21 of the Act - HELD THAT:- In Nirman Sindia Vs. Indal Electromelts Ltd., Coimbatore and others [[1999 (7) TMI 712 - KERALA HIGH COURT]], a detailed procedure for resolution of disputes in regard to payments was envisaged whereby the disputes were first required to be settled through Superintendent Engineer and if not satisfied with the decision of the Engineer, it was required to be referred to the adjudicator. Non-referral of disputes in regard to the disputes pertaining to payment, execution, work, etc. where it could have been settled without having the need to go to arbitration, was considered as an obstruction by the petitioner in not following the procedure as envisaged in the Contract and the request for arbitration was held to be premature. The facts involved in the present case are clearly distinguishable. In BADRI SINGH VINIMAY PRIVATE LIMITED VERSUS MMTC LIMITED [2020 (1) TMI 1625 - DELHI HIGH COURT], this Court had explained that Section 21 of the Act requires a party to send a request to the counter-party for the dispute to be referred to arbitration, which should indicate the facts leading to the dispute, and the nature of the claim be made clear. It also must clearly indicate the legal recourse intended to be undertaken if its claim is not satisfied. The initiation of arbitration proceedings in such a situation must be expressly contemplated. Thus, it needs to be considered if the petitioner has met the prerequisite requirement of service of Notice under S.21 of the Act. First and foremost, the intention of approaching the appropriate forum for recovery of its claims had been indicated in the Demand Notice itself. It was also stated that in case the claims of the petitioner are not satisfied, it would be compelled to approach the NCLT. Prima facie, it has been shown that there are arbitral disputes between the parties and in terms of the Clause 13 of the Work Order dated 19.12.2011, the disputes between the parties are referable to Arbitration - In light of the facts and submissions made, Ms. R. Kiran Nath, District & Sessions Judge (Retd.), (Mobile No. 9910384659) is hereby appointed as the independent Arbitrator to adjudicate the disputes between the parties. Petition allowed.
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