TMI Blog2023 (3) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... g - 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 HIG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Tyagi, Mr. Gaurav Mishra, Ms. Mayuri Shukla, Mr. Daman Popli and Ms. Neetu Devrani, Advocates. JUDGEMENT NEENA BANSAL KRISHNA, J 1. A Petition Arb. P. NO. 790/2020 under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) has been filed for appointment of a sole Arbitrator. A separate petition No.OMP(I)(Comm) 324/2020 under Section 9 of the Act has been filed against the respondent as well as against Army Welfare Housing Organization (hereinafter referred to as AWHO) for attachment of amount of Rs. 2,58,03,143/- 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. 2. The facts in brief, are that AWHO had awarded the work of construction of Twin Tower residential accommodation at Greater Noida, to the respondent vide CA No. AWHO/G.Noida/16/2010 dated 11.03.2011(hereinafter referred to as Project). AWHO vide its Letter no. E/03002/CA16-2010/GND-PH-IV/597/AWHO dated 16.11.2011 approved 2022/DHC/005579 ARB.P. 790/2020 connected matter Page 3 of 20 the petitioner as Specialist Firm for carrying out electrification works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it failed to make payments on back-to-back basis to the petitioner; rather the payments were made after the period of 6-8months. The disputes have thus, arisen between the parties. 8. The petitioner also submitted an application with MSME SAMADHAAN but no steps were initiated by the latter and the proceedings became void ab initio because of the statutory limit prescribed thereunder. 9. Consequently, C.P.(IB) No. 2734/2019 under Section 9 of the Insolvency and Bankruptcy Code (IBC) was filed by the petitioner against the respondent in NCLT, Mumbai for initiating corporate insolvency resolution process. The NCLT, Mumbai opined that the claim of the petitioner is valid and genuine and the respondent was asked to settle the matter. However, officials of the respondent were not willing to settle the matter and have been making fictitious and self-contradictory statements. 10. The petitioner filed the petition under Section 9 of the Act on 05.10.2020 wherein again the respondent had asserted that they are desirous of amicable resolution of disputes but again adopted an adamant and illogical approach and all the efforts to amicable settlement failed. 11. The petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of the Act which is in contravention of the law as laid down by the Courts. In the absence of the Notice of Invocation of Arbitration, the present petition is liable to be dismissed. 16. The respondent has further asserted that incorrect statements have been made by the petitioner in this petition. 17. On merits, it is admitted that respondent had entered into a Contract of Construction of Twin Tower residential accommodation at Greater Noida which for the convenience has been named as the main Contract. It is again not disputed that the electrical work was awarded to the petitioner vide Work Order dated 19.12.2011. It is submitted that several running bills had been raised by the petitioner for a period of 7 years and RA Bills No. 1 to 39 had been duly paid by the respondent on back-to-back basis. 18. It is explained that Work Order dated 19.12.2011 was amended by the respondent on 16.10.2017 due to introduction of GST and due to change in tax regime in 2017, which was accepted by the petitioner but all other terms and conditions as stated in the Work Order dated 19.12.2011 remained the same. The respondent had made payments from time to time aggregating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since, the petitioner itself has chosen to invoke the jurisdiction of NCLT, it is quite evident that there are no arbitrable disputes and the present petition is not maintainable. 26. It is a settled proposition of law that jurisdiction of NCLT can be invoked only in respect of determined debts. However, merely because a petition has been filed by the petitioner asserting that a definite amount is payable by the respondent, would not imply that the claimed amount has been admitted by the respondent but is only expressing its inability to be able to pay the claimed amount. The Respondent has consistently taken a stand in its Reply dated 08.05.2019 to the Demand Notice and in the other proceedings including Section 9 petition as well as in the reply to the present petition that the amounts have been claimed by the petitioner wrongly and the same are not due and payable by the respondent. 27. In Mobilox Innovations Private Limited Vs. Kirusa Software Private Limited (2018) 1 Supreme Court Cases 353,it was explained that under Section 9 (5) (ii) (d) of Insolvency and Bankruptcy Code (IBC), the adjudicating authority must reject an application if a notice of dispute is received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine of election was discussed in A. P. State Financial Corporation Vs. Gar Re-Rolling Mills (1994) 2 SCC 647wherein it was explained that when two remedies are available for the same relief, the party has an option to elect either of them but that doctrine would not apply where the ambit and scope of the two remedies is essentially different. In National Insurance Company Ltd. Vs. Mastan (2006) 2 SCC 641, the Apex Court explained that the doctrine of election is a branch of rule of estoppel in as much as a person may be precluded by his actions or conduct or silence when it has duty to speak, from asserting a right which he otherwise would have had. This test was endorsed by the Hon ble Supreme Court in the case of Ireo Grace Realtech Private Limited Vs. Abhishek Khanna and Others (2021) 3 Supreme Court Cases 241. 33. In Union of India and Others Vs. Cipla Limited and Another (2017) 5SCC 262, the Supreme Court explained that a classic example of Forum Shopping is when a litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. Examples were given of cases pertaining to child custody, successive bail applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evel. In case difference of opinion still persisting, then the matter shall be referred to Regional Head, at respective region. However, in case parties fail to reach amicable settlement, the matter shall be referred to arbitration. The arbitration shall be governed as per Indian Arbitration and Conciliation Act 1996 and shall be held in New Delhi 38. According to this Clause all disputes or difference of opinion on account of interpretation of clauses, technical specifications, etc. were to be first resolved through direct and mutual discussions at site level. In case difference of opinion still persisted, the matter was to be referred to Regional Head and even if thereafter the parties failed to reach the amicable settlement, the matter was to be referred to Arbitration. It may be observed that the mutual discussions and referral to Regional Head essentially pertained to difference/dispute in regard to interpretation of clauses, technical specifications, etc. The dispute between the parties arose in regard to the payments and not in respect of any technical specifications. Moreover, petitioner had also approached MSME Samadhan for resolution of disputes. Therefore, it canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Private Limited. 41. The respondent vide its reply dated 08.05.2019 disputed the claim of the petitioner and asserted that there were pre-existing disputes and differences between the respondent and the petitioner with respect to the work and the quality of work as well as non-performance by the petitioner and in respect of several deductions and debits to be made from the bills of the petitioner. It was also claimed that respondent had caused severe losses and damages which have already been communicated to the petitioner. Relevant Clauses of the Reply read as under: 3. SPCPL states that, there serious and bonafide disputes between BEPL and SPCPL with respect to the said claim, which are existing even prior to the issuance of the Demand Notice. The Demand Notice is, therefore, nothing but a malafide tactic adopted by BEPL to pressurize SPCPL to pay an alleged debt which is not due or payable by SPCPL to pay an alleged debt which is not due or payable by SPCPL, either contractually or legally or otherwise. No action under the Code is therefore maintainable against SPCPL, as alleged or at all. .. 9. Without prejudice to the above, the alleged claim under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to which there is an Arbitration Agreement, to refer the parties to arbitration. 45. In the light of above-mentionedjudgments, 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. In response thereto, the respondent had clearly indicated that there was no ground to approach the arbitration or NCLT. It is quite evident that from the Notice and the Reply thereto, the intention of invoking the legal proceedings which included arbitration, was expressly conveyed. The sole purpose of Section 21 is to put a party to notice about the intention of approaching the arbitration which was sufficiently conveyed through Demand Notice and the reply of the respondent. 46. It is significant to refer to the Order dated 21.10.2020 in OMP(I) (COMM) 324/2020 under Section 9 wherein it was submitted on behalf of the respondent that though the parties were unab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served upon the respondents, itself constitutes the notice invoking arbitration and if the parties have to agree, there is nothing prevents them even after the filing of the petition, to mutually agree on an Arbitrator. Similar Observations were made in M/s Civtech Engineers Pvt. Ltd. Vs. M/s. M. N. Securities Private Ltd. and Another, ARB. P. 93/2010 decided on 01.09.2010. 51. 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. 52. 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. 53. The parties are at liberty to raise their respective objections before the Arbitrator. 54. The fees of the learned Arbitrator would be fixed in accordance with the IV Schedule to A C Act, 1996 or as consented by the parties. 55. This is subject to the Arbitrator making necessary disclosure as under Section 12(1) of A C Act, 1996 and not being ineligible under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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