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TaxTMI 
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2020 (4) TMI 831
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....rations and negotiations, an agreement dated 1.8.2010 was entered into between the parties in respect of the abovesaid construction equipments for its work site C/o Janardhan Nirman Pvt. Ltd. L & TECC site, NTPC BARH site, BARH, Distt. Patna, Bihar. Being satisfied with the equipment services provided by the claimant company, the respondent further approached the claimant company for taking on rent another one (1) Pilling Rig-MAIT HR 180 (equipment) for its same abovesaid work site, along with double set of crew/operator for each equipment for carrying out the works as per the respondent's instructions. After deliberations and negotiations, an agreement 2.10.2010 was entered into between the parties herein in respect of the abovesaid equipments. Thereafter, the respondent further entered into agreements dated 19.3.2011 and 14.4.2011 for taking on rent one (1) Pilling Rig HR 180 vide each of the said agreements for carrying out the work as per the respondent's instructions for its work site at C/o Janardhan Nirman Pvt. Ltd., SAIL, DSP, Durgapur, West Bengal and C/o Janardhan Nirman Pvt. Ltd., NH-34, Farakka- Dafkhola Road Project, Near Kaliachak, Distt. Malda, West Bengal, respectiv....
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.... agreement." 5. In pursuance of the aforementioned agreements, construction equipments were provided by the appellant to the respondent at the respective sites as per instructions of the respondent. According to the terms and conditions of the agreements the respondent was to make payment within seven days from the date of submission of monthly bills failing which the respondent would be liable to pay interest for delayed period. Since the payments were not forthcoming, the appellant by its letter dated 21.01.2012 asked the respondent to pay the outstanding dues. In its response dated 01.02.2012 the respondent accepted that every Rig hired by it was as per the agreement. Since the payments were not forthcoming, by communication dated 02.03.2012 the appellant gave notice invoking arbitration. Relying on clauses 24 and 24.1 as stated above, it was stated that Shri L.C. Jain, President Consumer Forum (Retd.) was appointed as the Sole Arbitrator who would be conducting proceedings at New Delhi to adjudicate upon the dispute between the parties. It was also stated:- "You are requested to reply and join the arbitration proceedings within 14 days from the receipt of this notic....
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....e plaintiff filed this suit even after having knowledge of arbitration proceeding. ... ... All the disputes between the parties being the matters covered by arbitration clause are to be adjudicated by the arbitrator. Therefore, this court has no jurisdiction to hear and try this suit." The application preferred by the appellant was thus allowed and the plaint was directed to be returned. 8. The respondent filed Miscellaneous Appeal No.57 of 2014 in the Court of Additional District Judge, Second Court, Sealdah, challenging said order dated 26.05.2014. Pending appeal, interim relief was prayed for by the respondent and repeated adjournments on that count were sought by the respondent before the Arbitrator. The Arbitrator granted accommodation to the respondent on some occasions but as no interim order was passed by the appellate court, the proceedings before the Arbitrator continued. By ex-parte award dated 24.03.2015, the Arbitrator accepted the claim preferred by the appellant. The award was a common award covering claims in respect of all the four agreements. The award observed:- "The claimant company approached the Construction Industry Arbitratio....
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....kata, nor filed any reply/written statement or objections for consideration of the Sole Arbitrator. ... ... ... The respondent has taken the plea before the Ld. Civil Judge that the agreements as mentioned above have not been entered by him and all the documents are forged and fabricated and the Ld. Civil Judge in his order in the Civil Suit No.189 of 2012 has considered these pleas of the respondent and after due consideration of these pleas, directed the respondent to join the arbitration proceedings. ... ... Thus the claimant is entitled to receive from the respondent an amount of :- i) Rs. 78,78,533/- (Rupees Seventy Eight Lacs Seventy Eight Thousand Five Hundred Thirty Three only) i.e. claim amount. ii) Interest @ 11% per annum on the amount of Rs. 78,78,533/- (Rupees Seventy Eight Lacs Seventy Eight Thousand Five Hundred Thirty Three only) as pendente lite interest from 2.3.2012 i.e. from date of reference invoking arbitration till the date of award i.e. 24.03.2015; iii) Interest @ 11% per annum from the date of award i.e. from 25.03.2015 till realisation; iv) The claimant has deposited with CIAC the cost of arbit....
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....tion 34 of the Act, viz. Miscellaneous Case No.298 of 2015 was, thereafter, dismissed by the Court at Alipore on 13.08.2018 with following observations:- "After perusal of the case record I find that there was an arbitration clause in the agreement and the Arbitrator was appointed at New Delhi and the Ld. Arbitrator has passed the award in favour of the opposite parties. The question of jurisdiction of Section 34 has been raised. There are several case laws as cited by the Ld. Lawyer for the opposite parties. From the said case laws it is found that the jurisdiction of Section 34 is where the arbitration award was passed or in the place where the seat of arbitration was agreed by the parties. In the recent case laws reported in 2017 SCC Online SC 442- Indus Mobile Distribution Pvt. Ltd. vs. Datavind Innovations Pvt. Ltd.: (2017) 7 SCC 678, I find that the jurisdiction is exclusively in that place where the arbitration was done. Ld. Lawyer, for the petitioner referred the agreement in between the parties stating that there is a Clause of arbitration at Kolkata but in reply the Ld. Lawyer for the opposite parties stated that there are several agreements and the place of arbi....
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.... all the while the respondent was denying the existence of the agreements between the parties; that after seeing the agreements in original the Civil Court had accepted the application preferred by the appellant under Sections 5 and 8 of the Act; that the decision rendered by the Civil Court attained finality with the dismissal of Special Leave Petition by this Court; that the respondent chose not to participate in the arbitration proceedings; and that it was only at the stage of preferring petition under Section 34 of the Act that a submission was raised about the venue of arbitration. It was submitted that having chosen not to raise any objection on the issue of jurisdiction or competence of the Arbitrator to go ahead with the matter pertaining to issue covered by arbitration, the respondent must be taken to have waived any such objection. It was submitted that, in any case, the Arbitrator was appointed through Construction Industry Arbitration Association ('CIAA', for short) which was also the modality under the agreement dated 14.04.2011. In response, it was submitted by Mr. Varghese, learned Advocate that every arbitration agreement had to be considered independently and if....
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....es a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award. (6) A party aggrieved by such an arbitral award may make an application for setting aside such an arbitral award in accordance with section 34. ... ... ... 20. Place of arbitration. - (1) The parties are free to agree on the place of arbitration. (2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property." 20. While dealing with a case where instead of an odd number of Arbitrators, as is contemplated under Section 10 of the Act, the parties had agreed to arbitration of two Arbitrators and where objection in that behalf was not taken before the Arbitrators, a three Judge Bench of t....
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....n-derogable there can be no waiver. He submits that Section 10 is a provision from which a party cannot derogate. He submits that matters from which a party cannot derogate are those provided in Sections 4, 8, 9, 10, 11(4) and (6), 12, 13(4), 16(2), (3) and (5), 22(4), 27, 31, 32, 33, 34(2) and (4), 35, 36, 37, 38(1) and 43(3). He submits that, as against this, matters from which a party can derogate are those provided under Sections 11(2), 19(1) and (2), 20(1) and (2), 22(1), 24, 25, 26 and 31(3). ... ... ... 14. We have heard the parties at length. We have considered the submissions. Undoubtedly, Section 10 provides that the number of arbitrators shall not be an even number. The question still remains whether Section 10 is a non-derogable provision. In our view the answer to this question would depend on the question as to whether, under the said Act, a party has a right to object to the composition of the Arbitral Tribunal, if such composition is not in accordance with the said Act, and if so, at what stage. It must be remembered that arbitration is a creature of an agreement. There can be no arbitration unless there is an arbitration agreement in writing betwe....
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....the original contract was split into five different contracts and as such there ought to be a composite reference to arbitration covering all the contracts was not accepted by this Court. It was found by this Court:- "42. ... ... The case in hand stands entirely on different footing. As discussed earlier, all five different packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No. 4 TR nor on the MoU, which is intended to have clarity in execution of the work." Incidentally, it was a case of International Commercial Arbitration and in each of those agreements the seat of Arbitration was at Hyderabad. Moreover, the matter had arisen from an arbitration petition preferred under Section 11(6) of the Act. 22. In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The....