Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Special Leave Petition (C) No. 30863 of 2018
Nirmal Software Services Pvt. Ltd. …Petitioner
Versus
Dr. Babasaheb Ambedkar
Marathwada University & Ors. …Respondents
ORDER
INDU MALHOTRA, J.
The present Special Leave Petition has been filed challenging
Final Judgment & Order dated 18.09.2018 in Writ Petition No. 1413
of 2017 passed by the Hon’ble High Court of Judicature at Bombay,
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.07.09
16:57:50 IST
Reason:
Bench at Aurangabad.
1
On 20.10.2012 the Petitioner entered into a MoU with the
Respondent – University whereby the Respondent – University
entrusted the work of ‘Web Enabling’ and providing necessary web
services to the Petitioner. The MoU was Amended on 07.04.2016
whereby Clause 3.5 was inserted, which reads as under :
“3.5 Dr. Bamu & NSSPL shall mutually decide, finalize
and agree upon the Terms & Conditions including
financial terms to handover the Intellectual Property
Rights, Ownership Transfer to DR. BAMU as and when
required and decided upon.”
The said MoU contained an arbitration clause which reads as
under :
“12. ARBITRATION
12.1 All and any disputes and claims arising out of or
relating in any manner to this MoU or a breach,
termination, nonperformance, interpretation or
validly thereof, shall first be discussed in good
faith by officers duly nominated for the purpose
by each party, with a view to resolving the same.
12.2 All and any disputes and claims as aforesaid,
which cannot be fully and satisfactorily resolved
or settled by the parties as aforesaid, shall at the
request of either party, be submitted at
Aurangabad to arbitration. In such a case, a
joint request by NSSPL and BAMU will be made
to an eligible and competent person to act as an
Arbitrator. The appointment and the
proceedings of arbitration will be subject to the
provisions of Indian Arbitration & Conciliation
Act, 1996 as amended from time to time. The
cost of appointing the arbitrator shall be equally
shared by the parties herein.”
2
Disputes arose between the parties with respect to certain
communication issued by the Respondent – University, whereby the
purchase order in favour of the Petitioner, executed in furtherance
of the MoU, was kept in abeyance.
The Petitioner filed Writ Petition No. 1413 of 2017 before the
High Court of Judicature at Bombay, Aurangabad bench praying for
a Writ of Mandamus directing the Respondent – University to
forthwith make payment of the entire consideration under the
purchase Order dated 13.05.2019 and declare the action of the
Respondent – University in keeping the purchase order in abeyance
is illegal and void.
The High Court on 18.09.2018 dismissed the Writ Petition
filed by the Petitioner on the ground that the MoU entered into
between the parties clearly contains an arbitration clause, which
must be given effect to.
Aggrieved, the Petitioner has filed the present SLP. During the
course of hearing, this Court vide Order dated 08.04.2019 recorded
3
the submission of the Counsel for the Petitioner to refer the issue to
arbitration in terms of the MoU. On the basis of this statement,
notice was issued to the Respondent.
On 08.07.2019, the parties jointly requested for the
appointment of Mr. Justice Pratap Hardas (Retd.) Judge of the
Bombay High Court, as the Sole Arbitrator.
On the joint request of the parties, we appoint Mr. Justice
Pratap Hardas (Retd.) as the Sole Arbitrator, subject to the
declarations being made under Section 12 of the Arbitration and
Conciliation Act, 1996 with respect to independence and
impartiality, and the ability to devote sufficient time to complete the
arbitration within the period of 12 months. The parties have agreed
to pay fees to the Arbitrator in accordance with the Fourth Schedule
to the Arbitration and Conciliation Act, 1996 as amended. As per
the MoU, the seat/place of arbitration shall be Aurangabad.
4
A copy of this Order be dispatched to Mr. Justice Pratap
Hardas (Retd.). The matter is disposed of accordingly. Pending
applications, if any, stand disposed of.
…..……...........................J.
(ABHAY MANOHAR SAPRE)
..….……..........................J.
(INDU MALHOTRA)
New Delhi
July 9, 2019.
5