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Judgment
S.No.,"PARTICULARSO F GOOD
IMPORTED","SINVOICEV ALUE OF GOOD
(INR)","SVA L U E OF GOOD
AFTER PAYMENT O
CUSTOMS DUTY (INR)
I.,"18306 Kg of Natural Rubber Grade RSS
from M/s Petitioner Kharishma Pemasara
Bersama Nusantara, Jakarta, Indonesia
vide PO No.4100005281 dated 13.10.2016
Date of Arrival on Chennai Port
22.10.2016","121,27,878/ -
n
,
:","30,26,930/-
II.,"100 MT of Natural Rubber Grade RSS
from M/s Binh Thuan Rubber Co. Ltd
Vietnam vide PO No. 4100005232 dated
02.08.2016 Date of Arrival on Chenna
Port: 13.09.2016","31,05,92,400/-
,
i","1,57,93,554/-
III.,"100.80 MT of Natural Rubber Grade STR
20 from M/s Rubber Land Products Co
Ltd, Thailand, vide PO No.410000509
dated 27.05.2016 Date of Arrival on
Chennai Port: 25.08.2016","8-8,97,616/-
.
9","1,30,20,101/-
,TOTAL,"2,16,17,894/-","3,18,40,585/-
7M. That it is humbly submitted that owing to the inaction on the part of the Respondent, goods worth Rs. 1,93,31,342/- (Rupees One Crore Ninety",,,
Three Lakhs Thirty One Thousand Three Hundred Forty Two only) of the Petitioner were damaged out of which Petitioner could recover/realize only,,,
a sum of Rs. 1,08,03,410/- (Rupees One Crore Eight Lakhs Three Thousand Four Hundred Ten only), thus causing a net loss of Rs. 85,27,932/-",,,
(Rupees Eighty Five Lakhs Twenty Seven Thousand Nine Hundred Thirty Two only), which the Respondent is liable to pay under the terms of the",,,
said Agreement having expressly undertaken to protect the interest of the Petitioner including ensuring that no damage is caused to the material,,,
entrusted to the Respondent. In addition to the forementioned, Respondent is also liable for the excess amount paid by Petitioner for procuring raw",,,
material at higher cost to compensate for the damaged raw material which could not be utilized for production.â€,,,
The petitioner issued a legal notice, dated 5th June, 2019, calling on the respondent to pay ₹ 85,27,932/-, along with interest, to the petitioner. It is",,,
claimed that there was no response from the respondent.,,,
Attempts for amicable resolution of the disputes having failed, the petitioner seeks to invoke Clause 8 of the Agreement between the parties, which",,,
provides for arbitration as the mode of resolution of the disputes, and reads as under:",,,
“8 ARBITRATION,,,
In the event of any dispute or difference arising under this contract, the same shall be referred to Materials Director, JK Tyre & Industries Limited,",,,
New Delhi or any person authorized by him to act on his behalf and whose decision shall be final and binding on both the parties.""",,,
On 29th November, 2019, the petitioner issued a legal notice to the respondent invoking the above extracted arbitration clause. The petitioner also",,,
points out, correctly, that, though Clause 8 (supra), provides for arbitration by the Materials Director of the respondent, or any person authorised by",,,
him to act on his behalf, as Arbitrator, the covenant cannot operated in view of Section 12(5) of the 1996 Act, read with the Seventh Schedule thereto",,,
and the judgment of the Supreme Court in Bharat Broadband Networks Ltd. v. United Telecoms (2019) 5 SCC 755, and Perkins Eastmann Architects",,,
DPC v. HSCC (India) Limited (2019) SCC OnLine SC 1517.,,,
The petitioner has suggested names of three retired Judges of this Court as the sole Arbitrator, to arbitrate on the dispute between the parties.",,,
Today, learned counsel for the respondent is agreeable to arbitration of the disputes by Hon’ble Mr. Justice R.C. Chopra, a retired Judge of this",,,
Court, who is one of the sole Arbitrators suggested by the petitioner.",,,
In view thereof, arbitrable disputes having arisen between the parties, Hon’ble Mr. Justice R.C. Chopra (Retired), is appointed as the sole",,,
arbitrator to arbitrate on the disputes.,,,
This Court has not expressed any opinion on the merits of the case of the petitioner or the respondent. All contentions shall be left open to be,,,
agitated before the learned sole Arbitrator. Should the respondent seek to urge any counter claims, it would be at liberty to do so in accordance with",,,
law.,,,
The learned sole Arbitrator would arbitrate within the aegis of the 1996 Act and would be entitled to fees in accordance with Fourth Schedule of,,,
the said Act.,,,
The parties are directed to contact the learned sole Arbitrator with a copy of this order, as would be e-mailed by the Registry within 48 hours of",,,
obtaining the copy, so as to take the concurrence of the learned sole Arbitrator to arbitrate on the disputes and fix a schedule of the arbitration.",,,
The learned sole Arbitrator would, thereafter, proceed to enter on the reference, within one week and furnish a requisite disclosure under Section",,,
12(6) of the 1996 Act.,,,
With these observations, this petition stands disposed of with no orders as to costs.",,,