Case Note & Summary
The applicant, Transocean Drilling Services (India) Pvt. Ltd., and the respondent, Oil & Natural Gas Corporation Ltd., entered into an agreement on 24 May 2012 for charter hire of a drilling unit. Disputes arose, and the applicant invoked the arbitration clause (clause 28.1) by notices dated 5 March 2015 and 22 January 2016. The disputes were referred to arbitration, and an arbitral tribunal was constituted. However, the applicant sought appointment of an arbitrator on behalf of the respondent under Section 11(6) of the Arbitration and Conciliation Act, 1996. The respondent objected on the ground that the applicant did not give a 60-day notice as required by clause 28.1. The court held that the respondent, by not objecting to the invocation and by participating in the arbitration, waived the requirement of 60 days notice. The court allowed the application and appointed an arbitrator on behalf of the respondent.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Section 11(6) Arbitration and Conciliation Act, 1996 - Waiver of Notice Requirement - Applicant invoked arbitration clause but did not give 60 days notice as per clause 28.1 - Respondent did not object to the invocation and participated in the arbitration proceedings - Held that the respondent waived the requirement of 60 days notice and cannot raise objection at the stage of appointment of arbitrator (Paras 1-5).
Issue of Consideration
Whether the applicant is entitled to appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, despite not strictly complying with the 60-day notice requirement under clause 28.1 of the agreement.
Final Decision
The court allowed the application and appointed an arbitrator on behalf of the respondent.
Law Points
- Section 11(6) of the Arbitration and Conciliation Act
- 1996
- Appointment of arbitrator
- Waiver of notice requirement
- Commercial arbitration
Case Details
2018 LawText (BOM) (09) 56
Commercial Arbitration Application No.131 of 2018
Mr. Kaustav Talukdar with Mr. Vishesh Kalra with Ruturaj Bankar i/by M/s Lex Legal & Partners for the Applicant. Mr. Pankaj Sawant, Senior Advocate with Ms. D. Dabhash with Mr. J.P. Kapadia with Mr. O. Mohandas i/by M/s Little & Co. for the Respondent.
Transocean Drilling Services (India) Pvt. Ltd.
Oil & Natural Gas Corporation Ltd.
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Nature of Litigation
Commercial arbitration application under Section 11(6) of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator.
Remedy Sought
The applicant sought appointment of an arbitrator on behalf of the respondent.
Filing Reason
The applicant invoked the arbitration clause but the respondent did not appoint an arbitrator, leading to the application.
Issues
Whether the applicant is entitled to appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996 despite not strictly complying with the 60-day notice requirement under clause 28.1 of the agreement.
Submissions/Arguments
The applicant argued that the respondent waived the requirement of 60 days notice by not objecting to the invocation and by participating in the arbitration proceedings.
The respondent contended that the applicant did not give a 60-day notice as required by clause 28.1 and thus the application is not maintainable.
Ratio Decidendi
The requirement of 60 days notice under the arbitration clause can be waived by the other party if it does not object to the invocation of arbitration and participates in the proceedings. The court has power under Section 11(6) to appoint an arbitrator even if the notice requirement is not strictly complied with, if the other party has waived the same.
Judgment Excerpts
By this application filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, the applicant has invoked clause 28.1 of the agreement entered into between the parties and seeks appointment of an arbitrator on behalf of the respondent.
The applicant invoked arbitration agreement in respect of certain disputes. On 5th March, 2015 followed by notice dated 22nd January, 2016, those disputes were referred to Arbitration.
Procedural History
The applicant filed Commercial Arbitration Application No.131 of 2018 under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator on behalf of the respondent. The respondent opposed the application on the ground of non-compliance with the 60-day notice requirement. The court heard the parties and delivered judgment on 25 September 2018.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 11(6)
