TaxTMI 
TaxTMI 
2013 (2) TMI 100
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.....01.2011. The respondents had reserved the right to unilaterally cancel the Supply Order in case of late delivery. According to the terms and conditions of the Supply Order, if the machines were not delivered within the stipulated period then the respondents were entitled to unilaterally cancel the Supply Order and the extension of the delivery period was to be at the sole discretion of the respondents. It has remained undisputed that the appellant-petitioner did not adhere to the time schedule and failed to supply the Snow Mobiles within the stipulated period. On 19.01.2011 the appellant-petitioner addressed a communication to the respondents that on account of disruption in power supply in the month of December and because of severe snow storms the production in the Factory was disrupted which could be resumed only few days before the date of communication. A request for extension of 60 days was made. Similar communication seeking further time was addressed on 05.05.2011 with a prayer to extend the delivery period up to 20.09.2011. An assurance was held out that 10 Snow Mobiles would be arriving in India by 30th July, 2011 and the balance 11 Mobiles would be supplied on or bef....
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....f Maharashtra and ors (2007) 2 SCC 588. The learned Single Judge also sustained the preliminary objection raised by the respondents contemplating reference to the Arbitration. In the standard condition of the Supply Order the arbitration clause has been incorporated in Part III which provides for arbitration. The learned Single Judge proceed to hold that the issue raised in the instant proceedings was covered by the ambit and scope of arbitration clause and, therefore, the parties must be relegated to arbitration. 6. We have heard Mr. Sunil Sethi, learned senior counsel, who has again urged that the appellant-petitioner had explained the delay vide communication dated 19.01.2011 and sought extension of 60 days. Another request was sent on 05.05.2011 seeking extension up to 20.09.2011 with further stipulation that 10 Snow Mobiles were to be delivered by 30.07.2011 and balance by 15.09.2011. According to Mr. Sethi there was no response and the Custom Duty Exemption Certificate was issued on 19.08.2011 in respect of 6 Snow Mobiles. It has also been urged that respondent no.3 on 10.01.2012 requested the appellant-petitioner to depute its representative to HQ Northern Command, MGGS (....
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....amages. Therefore, on facts there is no room to conclude that in the absence of any express communication extending the period of delivery, it can by implication or by necessary intendment be inferred that there was extension of delivery period in accordance with stipulations made in clause 3 read with clause 9. In any case the prayer was made for extension up to 20.09.2011 but the delivery could be made only on 07.10.2011 which again is beyond the period for which extension was sought. 9. We are further of the view that the contract for supply of Snow Mobiles provide for arbitration in case of any dispute and differences between the parties. Section 5 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, in unequivocal terms provides that no judicial authority is to intervene in respect of those matters which are governed by that Act. It is not in dispute that clause 3 of Part III of the Standard Conditions of Supply Order provides for resolution of disputes by reference to arbitration which reads as under:- Arbitration: All disputes or differences arising out of or in connection with the Supply Order shall be settled by bilateral discussions. Any dispute, disagre....
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....ifferences arising out of or in connection with the Supply Order by bilateral discussions. The very fact that the appellant-petitioner has filed the writ petition relatable to the instant appeal would itself show that there is a dispute with regard to the supply of Snow Mobiles by the appellant-petitioner to the respondents. It thus follows that the arbitration clause in the present case satisfies all essential elements. Once the aforesaid factual position is not in doubt then the writ petition would not be maintainable as has been held in a catena of judgments, namely, The Empire Jute Co. Ltd and ors v. The Jute Corporation of India Ltd. And anr, (2007) 14 SCC 680 and Bharat Sanchar nigam Limited v. Telephones Cables Limited, (2010) 5 SCC 213. Thus on the basis of precedents, practices, statutes and arbitration agreement the writ petition filed by the appellantwrit petitioner cannot be held to be maintainable. 13. Before parting we may refer to an argument raised by Mr. Sunil Sethi that in every case it is not necessary to resort to arbitration. In that regard he has placed reliance on a judgment rendered by Hon ble the Supreme Court in Union of India and ors v. Tantia Construc....