- (1.) Heard teamed counsel for the parties. From the Office Report dated 9th February, 2012, it appears that all the Respondents have been duly served. However, no one appears in spite of service on behalf of the Respondent Nos. 1, 3 and 4. The Respondent No. 2, NTPC, is duly represented by Ms. Ruchi Kohli, learned Advocate-on-Record.
(2.) Mr. Anukul Raj, Learned Counsel appearing for the Respondent No. 2, submits that the said Respondent is not governed by the arbitration clause and, therefore, ought not to have been impleaded as a party in these proceedings. The Respondent No. 2 has appeared in these proceedings only to ensure that an objection is taken on the record to the effect that the Respondent is not a party to the Arbitration Agreement. Learned Counsel further submitted that the Respondent No. 2 intends to move a formal application for its deletion from the array of parties. In my opinion, in order to expedite the matter, the oral submissions made by the Learned Counsel can be taken on record. Since the Respondent Nos. 1, 3 and 4, have not filed any counter affidavit, the averments made in the petition remain uncontroverted.
(3.) A perusal of the averments made in the petition would indicate that the Petitioner is claiming that the Respondents have acted in breach of contract. It is further averred that the Petitioner is entitled to be paid for all the expenses, costs, charges and fees fully, as per the contract, and thus, a total amount of US $ 694, 519.03, is payable to the Petitioner up to 31st January, 2011. It is also apparent that the Petitioner had given a legal notice to the Respondent No. 1 on 30th January, 2010, demanding payment of the outstanding invoices. The Respondent No. 1 has, however, failed to make the payments, as demanded by the Petitioner. Therefore, vide notice dated 31st March, 2010, the Petitioner invoked the arbitration clause under the Contract to adjudicate upon the claims stated in the legal notice dated 30th January, 2010. Learned Counsel for the Petitioner has also brought to my notice the arbitration clause, which is as under: 13.0 SETTLEMENT of DISPUTE and ARBITRATION 13.1 The Parties shall use their best efforts to settle amicably all disputes, differences or claims arising out of or in connection with any of the terms and conditions of this Contract or concerning the interpretation or performance thereof. 13.2 Reference to Sole Expert: The parties have agreed to refer to a sole expert with regard to technical and other matters which in the opinion of both the parties require specialized and expert knowledge/interpretation. The sole expert shall be an independent and impartial person of international standing with relevant qualifications and experience. Any sole expert appointed by both the parties shall act as an expert and not as an arbitrator and the decision of the sole expert on matters referred to him shall be final and binding on the parties and not be subject to arbitration. If the parties are unable to agree on a sole expert, the matter may be referred to arbitration. Sole expert shall give his decision within 30 days from the date of reference. 13.3 Unresolved Disputes: Subject to the provisions of this Contract, the parties hereby agree that any unresolved dispute, difference or claim which cannot be agreed or settled amicably within thirty (30) days or as otherwise agreed may be submitted to a Sole Expert (where Clause 13.2 applies) or otherwise be referred for arbitration. 13.4 Any dispute between the Parties which is not settled in accordance with Clause 13.1, 13.2 and 13.3 shall be finally and exclusively settled by arbitration in accordance with Arbitration and Conciliation Act, 1996, by a Tribunal of three (3) arbitrators, with one (1) arbitrator each to be appointed by Contractor and Company and third arbitrator (who shall be the presiding arbitrator) by the two (2) arbitrators so appointed. Arbitration shall be in the English language. Any arbitration award made by the said Tribunal shall be final and binding on the parties and shall be enforceable in any court of competent jurisdiction. The venue of arbitration shall be New Delhi. 13.5. Excepting the dispute, differences or question as may have been referred to arbitration, parties shall, during the period of submission and pending its adjudication, continue to perform the rest of their obligations under this Agreement and the said Tribunal shall take such performance into consideration as appropriate.;