Full Judgment Text
NEUTRAL CITATION NO. 2023/DHC/001592
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of order : 27 February, 2023
+ ARB.P. 945/2022
M/S VALLEY TELEGENCE PRIVATE LIMITED ..... Petitioner
Through: Mr. Bijender Singh and Mr.
Manjeet Singh, Advocates
versus
M/S RAH INFOTECH PRIVATE LTD. ..... Respondent
Through: Mr. Preet Pal Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
O R D E R
CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Section 11 of the Arbitration and
Conciliation Act, 1996 has been filed on behalf of petitioner seeking the
following reliefs:-
"a. Appoint Retd. Justice Sh. Kailash Gambhir, HMJ, High
Court of Delhi as the Sole Arbitrator as per Section 11 of
Arbitration and Conciliation Act,1996; and
b. Direct that costs of the proceedings be awarded in favor
of the Petitioner; and
c. Pass such other and further order(s) as this Hon’ble Court
may deem fit and appropriate for the proper adjudication of
this case in the favor of the Petitioner and against the
Respondent."
ARB.P. 945/2022 Page 1 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
2. The Petitioner is a Telecom Group working in VAS Infrastructure
and Applications catering to requirements across technologies like GSM,
CDMA, 4G/LTE, & Enterprise mobile apps in the Indian and APAC
Market. It is engaged in the business of providing Telecom Solutions, IT
Services, Enterprise Applications, Solution Designing and Development,
Mobile Applications, Wi-Fi Monetization & Management Solutions, Data
Processing, E-Governance Applications, System Integration and
Consultancy Services and carrying out end-to-end application
development and management of the systems and solutions.
3. The Respondent is involved in providing IT s olutions by delivering
an enterprise’s entire collection of hardware, software, networks, data
centre facilities and related equipments used to build, test, operate,
monitor, manage and support IT Services. It provides the communication
path and services between users, processes, applications, services and
external networks.
4. Learned counsel appearing on behalf of petitioner submitted that
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the Petitioner and Respondent entered into two Agreements dated 11
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June, 2018 and 7 August, 2018 for sale and purchase of IT Goods and
various Purchase Orders (POs) whereby the Respondent was to supply IT
Hardware (Cambium make-Outdoor Wireless Equipment/ Dual Band
Outdoor Access Points, Model-cnPilot E500 & E510 along with
CnMaestro Management System) and any other additional license/ IP
related to the functioning and usage of contracted items on placing of
PO's and tendering of payment regarding the same by the Petitioner.
ARB.P. 945/2022 Page 2 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
5. It is stated that the Petitioner raised PO’s of specified dates,
description of IT Goods and quantities for which the Respondent was
bound to supply as per terms of the Agreements and said PO’s. However,
the Respondent failed in supplying the same in accordance with the terms
of the PO’s as wells as the Agreement.
6. It is stated that the Petitioner duly tendered payments of the PO’s,
thus fulfilling its part of the Agreements. However, despite receiving
complete payments, the Respondent failed to supply requisite goods with
full-fledged Licenses which has resulted in huge financial loss to the
Petitioner and further left the Petitioner in a vulnerable standing in the
trading community by placing the business and reputation of the
Petitioner in jeopardy.
7. It is submitted that the Respondent repeatedly gave the Petitioner
"Trial Version" licenses, breaching the Agreements. The Respondent has
extended the "Trial Version" license term restriction for years, keeping
the Petitioner in limbo. The delivery of the same forms an integral part of
the whole deliverable as per the agreed terms of the said Agreements and
PO’s issued thereunder to the Respondent. The Respondent is thus using
unfair commercial tactics to maintain acquiring unjustified business.
8. It is stated that the Respondent has failed to provide the facility of
‘Zero Touch Provisioning & Mesh Functionality’ which was a part of
deliverables as per Terms and Conditions mentioned in each PO which
was accepted by the Respondent.
9. It is further submitted that the said Agreements encompass an
ARB.P. 945/2022 Page 3 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
Arbitration Clause at Para No. 11, to be invoked by either party to the
said agreements when any dispute of any nature whatsoever arises
between them.
10. It is submitted that a Legal Notice dated 06.05.2022 was issued by
and on behalf of the Petitioner demanding payment of Rs. 14,14,74,827/-
with interest @ 18% per annum till date of realization as suffered by the
Petitioner in consequence of breach of Terms and Conditions of the
Agreements, and invoking of the Arbitration clause of Agreement dated
11.06.2018 and thereby, proposed the name of Retd. Justice Sh. Kailash
Gambhir, High Court of Delhi, R/o W-67, Third Floor, Greater Kailash,
New Delhi - 110048 as the Sole Arbitrator. However, the Respondent has
neither replied to the said Legal Notice nor objected to the name of the
Arbitrator.
11. In view of the aforesaid facts and arbitrary exercise of authority by
the Respondent and its authorities, the Petitioner herein has been deprived
of its necessary right to remedy. Hence, the Petitioner is constrained to
prefer the present petition under section 11(6) of the Arbitration and
Conciliation Act, 1996 for appointment of an Arbitrator.
12. Per contra, learned counsel for the Respondent submitted that as
evident from the documents, the agreements containing arbitration clause,
on the basis of which the present petition is being filed, were executed in
Gurugram, Haryana, and thus the jurisdiction lies with the High Court of
Punjab & Haryana and the present petition is not maintainable and liable
to be dismissed on the said ground.
ARB.P. 945/2022 Page 4 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
13. It is stated that the petition and stated disagreement are a
smokescreen to avoid liability, and the arbitration procedure has been
started with malicious purpose to establish a moonshine defence to the
Respondent's accusations. The Petitioner's false and frivolous version is
based on inaccurate and partial facts to mislead this Court and get
favourable rulings by suppressing crucial information.
14. It is submitted that the Petitioner owes the Respondent corporation
a debt that is due, outstanding, and payable. The Petitioner has not
disclosed to the Court that it owes Rs.1,24,00,500/- to the Respondent,
that a cheque issued in discharge of the legally recoverable debt drawn
and issued by the Petitioner has been dishonoured, and that the
Respondent has initiated legal proceedings in accordance with law. In
view of the aforesaid, it is submitted that the instant petition as being
devoid of merits be summarily dismissed. However, after some length of
arguments it has been fairly agreed by the learned counsel on behalf of
the respondent that the disputes between the parties are arbitrable in
nature and this Court can consider appointing a sole arbitrator to
adjudicate the claims between the parties.
15. Heard learned counsel for the parties and perused the record.
16. As agreed on behalf of the parties, it is evident that the disputes
between the parties are arbitrable in nature. It is also agreed that an
Arbitrator may be appointed for adjudicating the disputes that have arisen
between the parties in relation to the abovementioned Agreements. In
view of the same, this Court is inclined to refer the disputes between the
ARB.P. 945/2022 Page 5 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
parties for being resolved to arbitration, by appointing an arbitral tribunal.
Hence, the following Order:
ORDER
(i) Justice (Retd.) N V Ramana, former Chief Justice of India is
appointed as the sole arbitrator to adjudicate the disputes
between the parties which have arisen under the
Agreements;
(ii) The learned sole arbitrator, before entering the arbitration
reference, shall ensure the compliance of Section 12(1) of
the Arbitration and Conciliation Act, 1996;
(iii) The learned sole arbitrator shall be paid fees as prescribed
under the he Delhi International Arbitration Centre (DIAC)
(Administrative Cost and Arbitrators Fees) Rules, 2018 as
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amended vide notification dated 15 November, 2022;
(iv) At the first instance, the parties shall appear before the
learned sole arbitrator within 10 days from today on a date
which may be mutually fixed by the learned sole arbitrator;
and
(v) All contentions of the parties are expressly kept open.
17. The petition is disposed of in the aforesaid terms along with
pending applications, if any.
18. The order be uploaded on the website forthwith.
ARB.P. 945/2022 Page 6 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25
NEUTRAL CITATION NO. 2023/DHC/001592
A copy of the order be forwarded to the learned sole arbitrator on
the following address:
Justice (Retd.) N V Ramana
Former Chief Justice of India
Address: 2, Tughlak Road, New Delhi -110011
Phone No.- +91 - 9818000162.
CHANDRA DHARI SINGH, J
FEBRUARY 27, 2023
Dy/@k
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ARB.P. 945/2022 Page 7 of 7
Signature Not Verified
Digitally Signed
By:GAURAV SHARMA
Signing Date:03.03.2023
19:30:25