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TMI Blog2016 (4) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... and/or Moser Baer, Lanco Projects Ltd. etc. 4. The respondent issued a Purchase Order dated 9th December, 2013 to the petitioner inter alia for the design, manufacturing, testing, supply, supervision of erection and commissioning of TRF make plough feeders as per NIT specification for the Coal Handling Plant at Annupur Thermal Power Project. To secure the performance under the Purchase Order, the petitioner had submitted an Advance Bank Guarantee and a Performance Bank Guarantee. 5. The petitioner approached this Court by way of petition under Section 9 of the Act praying for an injunction against the respondent from exercising its contractual rights to encash the Advance Bank Guarantee and the Performance Bank Guarantee, both of which are admittedly unconditional. Thereafter, the petitioner filed set of petitions under Section 9 of the Act seeking an order for the respondent to furnish security for the purportedly outstanding amounts. 6. The details of the said 1st set of petitions filed by the petitioners under Section 9 of the Act are given as under:- S. No. Case Title Case Number Section Details Amount/claim Amount outstanding 1. TRF Ltd. v. Energo Engineering Proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Side Arm Charger dated 26th May, 2014. Over Rs. 2 crore Restrain the respondent from encashing the Bank Guarantee Nos. 1403831BGA00007 for Rs. 4,62,92,400/-and 1403831BGP00026 for Rs. 5,01,09,200/- executed by the petitioner in favour of the respondent in pursuance to the agreement entered between the parties. 2. TRF Ltd. vs. Energo Engineering Projects Ltd., O.M.P.(I) (Comm.) 66/2015 Petition under Section 9 of the Arbitration and Conciliation Act, for interim orders. Respondent No. 1 issued purchase orders to the petitioner dated 10th May, 2014 for supply of Wagon Tippler and Side Arm Charger and for erection and commissioning of Wagon Tippler and Side Arm Charger dated. Over Rs. 2 crore Restrain the respondent from encashing the Bank Guarantee Nos. 1403831BGP00028 for Rs. 1,21,76,700/-and 1403831BGA00010 for Rs. 1,12,26,700/-executed by the petitioner in favour of the respondent in pursuance to the agreement entered between the parties. 3. TRF Ltd. vs. Energo Engineering Projects Ltd., O.M.P.(I) (Comm.) 68/2015 Petition under Section 9 of the Arbitration and Conciliation Act, for interim orders. Respondent No. 1 issued to the petitioner purchase order dated 22nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Arbitrator in terms of clause 33.d of the Purchase Order. 12. Later on, admittedly, Justice A.P. Shah (Retd.) ("Arbitral Tribunal") by letter dated 29th January, 2016 addressed to both the parties directed them to appear before the Arbitral Tribunal for a preliminary meeting to be held on 9th February, 2016. 13. It is alleged by the respondent that with the sole purpose of defeating the arbitration proceedings, the petitioner has sought to invoke the jurisdiction of this Court under Section 11(5) read with Section 11(6) of the Act by way of the present petition. 14. The present petition has been filed under both Sections 11(5) and 11(6) of the Act. The fundamental procedure for invocation of this Court's jurisdiction under Section 11(5) of the Act, i.e. failure on part of the parties to agree on a procedure for appointment of Arbitrator under Section 11(2) of the Act is not made out. 15. Clause 33.b of the GTCPO states that if the parties fail to amicably resolve the disputes, then either party may require that the dispute be referred to arbitration. 16. Clause 33.d of the GTCPO provides that any dispute between the parties in connection with the Purchase Order "shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to nominate a sole Arbitrator only so long as he is also qualified to act as such. 22. The right of one party to a dispute to appoint a sole Arbitrator prior to the amended Act has been well-recognized and the amended Act does not take away such a right. Had the intent of the amended Act been to take away a party's right to nominate a sole Arbitrator as suggested by the petitioner, the same would have found mentioned in the detailed list of ineligibility criteria enumerated under the Seventh Schedule to the Act. Therefore, the petitioner's submission that the arbitration clause under clause 33.d of the GTCPO has been rendered void, is without any merit. Thus, the petitioner has been able to make out a case for exercise of powers by this Court under Section 11(5) of the Act. 23. The recourse to Section 11(6) of the Act can be had only if there are any of the contingencies provided under Section 11(6) (a), (b) or (c). The petitioner is not able to indicate as to how any of the contingencies contemplated by Section 11(6) of the Act arise in the present case. 24. The petitioner has contended that the appointment of the Arbitral Tribunal is contrary to Item Nos. 22 and 24 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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