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Huawei Technologies Co. Ltd. Versus Sterlite Technologies Ltd.

2015 (9) TMI 866 - SUPREME COURT

Appointment of the arbitrator - substitute arbitrator after termination of earlier arbitrator - Held that:- Clause 22.3 of the Supply Contract contemplates appointment of a sole arbitrator by the parties by mutual consent. In a situation where the original arbitrator i.e. Shri Justice S.K. Dubey had recused himself the substitute or new arbitrator is required to be appointed according to the rules that were applicable to the appointment of the original arbitrator. This is the mandate of Section .....

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had not been followed. In these circumstances, the Court will understand the present application/arbitration petition to be premature. It is accordingly not entertained leaving it open for the petitioner to act appropriately, if so advised, in terms of the present order and thereafter seek its remedies as provided by law. - Arbitration Case (Civil) No. 27 of 2015 - Dated:- 4-9-2015 - Ranjan Gogoi, J. JUDGMENT 1. This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ( .....

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ndent by the MTNL. On 9th April, 2007, the parties entered into a Supply Contract for the aforesaid project. According to the petitioner, though it had complied with all the terms and conditions of the said supply contract and had shipped/delivered all equipments on time, the respondent had failed to make full payment of the amounts due and an amount quantified at USD 13,390,000 is due and payable. The petitioner sent a legal notice dated 28th November, 2014 calling upon the respondent to make p .....

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ent was accepted. Thereafter the respondent raised a dispute with regard to the reference to the arbitration and rejected the appointment of Shri Justice S.K. Dubey as the sole Arbitrator. In these facts the learned sole Arbitrator Shri Justice S.K. Dubey by order dated 21st January, 2015 recused himself from the proceedings. It is in the aforesaid circumstances that the present application/arbitration petition has been filed under Section 11(6) of the Act for appointment of a sole Arbitrator. 2 .....

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rein. Certain other objections have also been raised on the merits of the dispute contending that the petitioner had not fulfilled its obligations under the Supply Contract so as to be entitled to the amounts as claimed. 3. The Court has heard the learned counsels for the parties. 4. Under Section 15(2) of the Act in a situation where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules that were applicable to the appointment of the .....

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he parties are to be referred to arbitration and, therefore, the expression rules appearing in Section 15(2) of the Act will have to be understood with reference to the provisions for appointment contained in the Supply Contract. 5. Clause 22.3 of the Supply Contract which deals with the matter may be extracted at this stage: 22.3 All disputes, controversies or claims arising out of or in connection with or in relation to this Contract of its negotiation, performance, breach, existence or validi .....

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