- (1.) The petitioner has filed this petition u/s. 11 (4) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') for appointment of an Arbitral Tribunal for adjudication of its claims and settlement of the disputes between the parties.
(2.) The facts, in brief, as stated by petitioner are as follows: 2.1. Petitioner is a company incorporated under the laws of Tunisia. The respondent placed purchase orders dated 10.11.2000, 17.11.2000, 4.12.2000, 20.12.2000 and 13.7.2001 on the petitioner for supply of various quantities of Phosphoric Acid. Each purchase order stipulated the quantity to be supplied, the price, the payment terms and shipment particulars. All the purchase orders stated that all other terms and conditions are as per FAI terms (that is, the "Fertilizer Association of India Terms and Conditions for Sale and Purchase of Phosphoric Acid"). Clause 15 of FAI terms provided for settlement of disputes by arbitration. 2.2. The petitioner effected the supplies in pursuance of the purchase orders and raised invoices for such supplies. The respondent failed to pay the invoice amounts aggregating to US $ 1,50,15,913.38 in respect of the supplies against the said purchase orders, and went on seeking extension of time for making payment on the ground of financial difficulties. 2.3. The petitioner, therefore, filed a suit in the Amman Court of First Instance, Jordan, in Case No. 223/2002 for recovery of the amounts due; The respondent contested the jurisdiction of the said court, firstly, on the ground that the courts at Jordan did not have jurisdiction and, secondly, on the ground that there was an arbitration agreement between the parties, as per cl. 15 of the FAI terms. The Amman Court of First Instance, dismissed the petitioner's case on 20.3.2003 on the ground of lack of jurisdiction. The petitioner challenged the same before the Amman Court of Appeal in case No.1229/2003 which was also dismissed on 25.6.2003. 2.4. The petitioner issued a statutory notice dated 2.8.2004 demanding payment of the amount due with interest @ 7.5% per annum. On respondent's failure to pay, the petitioner filed a petition for winding up in Company Petition No. 276/2004 on the file of the High Court of Madras, which is pending. The petitioner also issued a notice dated 30.8.2005 through its counsel informing the respondent that the disputes and differences between the parties on account of non-payment of amounts due by the respondent shall have to be settled by arbitration in terms of cl. 5 of FAI terms and appointed Mr. Justice D.P. Wadhwa, former Judge, Supreme Court of India, as its Arbitrator, and called upon the respondent to appoint its Arbitrator in terms of the arbitration clause within 30 days of the receipt of the notice. The petitioner also informed the respondent that if the respondent failed to comply, appropriate proceedings will be initiated. In spite of it, the respondent did not comply, necessitating the filing of this petition for appointment of an second Arbitrator to the Arbitral Tribunal for adjudication and settlement of the claims.
(3.) The respondent entered appearance and has filed its counter, resisting the petition on the following grounds : (i) The petitioner, having denied before the Jordanian Courts (Amman Court of First Instance and Amman Court of Appeals), the existence of arbitration agreement between the parties, is estopped from contending in this petition, that there is an arbitration agreement between the parties, or that the disputes should be settled by arbitration. (ii) The claim of the petitioner is barred by limitation as the amounts claimed are in respect of goods dispatched as per the Bills of Lading dated 19.11.2000, 28.11.2000, 10.12.2000, 22.12.2000 and 13.7.2001, and the last of the correspondence from respondent was on 17.4.2002. (iii) The petitioner's contention that there is an arbitration agreement between the parties in accordance with cl. 15 of the FAI terms is not tenable. Without prejudice to the said contention, the respondent has submitted that in the event of this Court coming to the conclusion that there is a binding arbitration agreement, Mr. Justice S. Ratnavel Pandian, former Judge of the Supreme Court, be nominated as its nominee on the Arbitral Tribunal.;