Case Note & Summary
The applicant, SAP India Private Limited, filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of an arbitrator to adjudicate disputes arising from a Services General Terms and Conditions Agreement dated 30 October 2015 with the respondent, Cox & Kings Limited, for implementation of SAP Hybris ECommerce Solution Software. The applicant contended that disputes arose regarding the implementation and the respondent failed to appoint an arbitrator as per the arbitration clause. The respondent opposed, arguing that the disputes were not arbitrable. The court, after hearing arguments, held that the existence of an arbitration clause was sufficient and the respondent's failure to appoint an arbitrator warranted appointment under Section 11(6). The court appointed a sole arbitrator to adjudicate the disputes.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Section 11(6) of the Arbitration and Conciliation Act, 1996 - Applicant sought appointment of arbitrator due to respondent's failure to appoint - Court held that since the arbitration clause existed and respondent failed to act, appointment of arbitrator was justified - Held that the court's role under Section 11 is limited to ensuring existence of arbitration agreement and not to examine merits (Paras 1-10).
Issue of Consideration
Whether an arbitrator should be appointed under Section 11(6) of the Arbitration and Conciliation Act, 1996 when the respondent failed to appoint an arbitrator as per the arbitration clause in the agreement.
Final Decision
The court allowed the application and appointed a sole arbitrator to adjudicate the disputes between the parties.
Law Points
- Section 11(6) of the Arbitration and Conciliation Act
- 1996 empowers court to appoint arbitrator when party fails to act as per agreed procedure
- Existence of arbitration clause is sufficient for appointment
- Court does not examine merits of dispute at this stage
Case Details
Commercial Arbitration Application No.61 of 2018
Mr.Navroz Seervai, Senior Advocate with Ashish Kamat Farhad Sorabjee, Pratik Pawar, Ms.Shanaya Vyrus Irani, Siddhesh Pradhan I/b. J.Sagar Associates, for the Applicant. Mr.Rampal Singh Kohli with Sonia Redkar I/b. C.K.Legal Advocates and Consultants, for the Respondent.
SAP India Private Limited
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Nature of Litigation
Commercial arbitration application for appointment of arbitrator
Remedy Sought
Applicant seeks appointment of an arbitrator on behalf of the respondent to adjudicate disputes under the agreement
Filing Reason
Respondent failed to appoint an arbitrator as per the arbitration clause in the agreement dated 30 October 2015
Issues
Whether an arbitrator should be appointed under Section 11(6) of the Arbitration and Conciliation Act, 1996 when the respondent failed to appoint an arbitrator as per the arbitration clause.
Submissions/Arguments
Applicant argued that disputes arose under the agreement and respondent failed to appoint arbitrator despite notice.
Respondent opposed, contending that disputes were not arbitrable.
Ratio Decidendi
Under Section 11(6) of the Arbitration and Conciliation Act, 1996, when a party fails to act as per the agreed procedure for appointment of arbitrator, the court may appoint an arbitrator. The court's role is limited to ensuring existence of an arbitration agreement and not to examine merits of the dispute.
Judgment Excerpts
By this application under Section 11(6) of the Arbitration and Conciliation Act,1996 (for short 'the Act'), the applicant seeks appointment of an arbitrator on behalf of the respondent to adjudicate the disputes between the parties which are stated to have arisen under the agreement dated 30 October 2015 termed as 'Services General Terms and Conditions Agreement' for implementation of the SAP Hybris ECommerce Solution Software (for short 'the agreement').
Procedural History
The applicant filed Commercial Arbitration Application No.61 of 2018 under Section 11(6) of the Arbitration and Conciliation Act, 1996. The court reserved judgment on 21 November 2018 and pronounced on 30 November 2018.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 11(6)
