Philips Electronics India Ltd. and Others vs NDMC

Manmohan Singh, J.—The petitioner has filed the present petition u/s 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator. It is case of the petitioners that respondent invited tenders from four luminaries manufacturers including the petitioner No. 1 for upgradation of street lighting in the NDMC area in the run up to the Commonwealth Games 2010. It was specified in the tender that it was a designed based tender and therefore, in case of a joint venture consortium, the principal or lead member shall be manufacturer of luminaries having a tie up with pole manufacture and reputed electrical contractors. Therefore, the petitioners entered into an MoU dated 24th April, 2009 whereby it was agreed that they would work together as members of a consortium for the purpose of participating in the tender. It is stated in the petition that pursuant to Agreement No. 6/EE(E) C-III/2009/10 dated 15th September, 2009 and letter No. D796/EE (C-II) dated 16th December, 2009 and letter No. D315/EE (C-II) dated 12th May, 2010, the petitioner No. 1 was awarded the contract of upgradation of street lighting in NDMC area under Ph-I & Ph II for 81 roads for Commonwealth Games 2010. The petitioners executed the said work within the agreed time. However, the full and final contract amount has not been paid to the petitioners by the respondent. According to the petitioners, Rs. 9,48,70,633/- is due and payable by the respondent to the petitioners towards the execution of contract, Earnest Money Deposit, in addition to refund of security deposit, along with interest. The petitioners sent various reminders requesting the respondent to release the said amount but to no avail.

In view of the above, the petitioners have invoked the arbitration clause 25 of the agreement. The petitioners have also issued a legal notice dated 8th August, 2012 in this regard. As the respondent failed to appoint the arbitrator, the petitioner has filed the present petition.

Notice was issued to the respondent who did not file any reply. On the last date, another opportunity was given to the respondent either to take instructions with regard to the appointment an independent sole arbitrator or to file the reply and argue the case on merit. Today when the matter is listed, both the parties have agreed that an independent sole arbitrator be appointed. They have also suggested few names. However, I appoint Justice M.K. Sharma, retired Judge of Supreme Court (Mob. No. 9818000190) as sole Arbitrator to adjudicate the disputes between the parties arising out of the Agreement No. 6/EE(E) C-III/2009/10 dated 15th September, 2009 and letter No. D796/EE (C-II) dated 16th December, 2009 and letter No. D315/EE (C-II) dated 12th May, 2010. The fees of the Arbitrator be also paid under the said Rules maintained by Delhi High Court Arbitration Centre.

The petition is accordingly disposed of. Copy of this order be communicated to the learned Arbitrator. Copies of the same be also given dasti to the learned counsels for the parties.