CHANDOK MACHINERIES Vs. S.N. SUNDERSON & CO.

JUDGEMENT

(1.) This appeal is directed against a judgment dated 28.08.2018 passed by a learned Single Judge, whereby the appellant's petition under Section 34 of the Arbitration and Conciliation Act , 1996 [hereinafter referred to as the "Act"] has been dismissed. By the said petition, the appellant had sought setting aside of an award dated 12.06.2017, passed by a three- member Arbitral Tribunal [hereinafter referred to as "the Tribunal"] in respect of disputes which arose between the parties.

(2.) The facts necessary for adjudication of this appeal are these: The parties entered into two sets of Memorandums of Understanding [hereinafter referred to as "MOU"] in respect of work to be carried out at two mines in Katni District in the State of Madhya Pradesh. By two MOUs dated 04.09.2012, one for services and the other for re-imbursement of expenses [hereinafter collectively referred to as "the first MOU"] the parties agreed to carry out de-watering, excavation, crushing and transportation of lime stone/dolomite extracted at the said mines. It is the appellant's case that it began to work on one of the mines [Ahmeta Mine] and lump sum payments were made by the respondent to it from time to time. On 31.08.2014, following a change in the management of the respondent, the parties agreed to settle their accounts for the work already done and to carry on further work under fresh agreements to be executed on 01.09.2014. Consequently, two MOUs were executed on 01.09.2014 [hereinafter collectively referred to as "the second MOU"] whereunder the appellant was entrusted with the task of crushing, gitti breaking, transportation, loading and related works at both the mines, for a term of 18 months i.e. until 29.02.2016. The respondent sought to terminate the second MOU dated 01.09.2014 by a letter dated 15.12.2014, which gave rise to the disputes between the parties.

(3.) Both the first and the second MOU contained arbitration clauses. The litigation between the parties commenced with the appellant filing a petition under Section 9 of the Act before the District Court at Katni District, Madhya Pradesh. The said Court disposed of the petition holding that the appropriate forum for relief, was the courts in Delhi as the seat of the proposed arbitration was Delhi. Although this order was challenged before the Madhya Pradesh High Court, that appeal was rendered infructuous, as the appellant had in the meanwhile filed OMP No.99/2015 in this Court. In that petition, directions were given for quantifying/measuring the materials extracted by the appellant, both crushed and uncrushed, and for removal of its machines. The appellant invoked arbitration by a notice dated 27.12.2014. The final constitution of the Tribunal took place on 27.11.2015 when this Court appointed Hon'ble Mr. Justice Anil Kumar, a former Judge of this Court, as the presiding Arbitrator, in addition to the arbitrators nominated by the parties. Although claims and counterclaims were filed before the Tribunal by the appellant and respondent herein respectively, the Tribunal ultimately adjudicated only the counterclaims as the appellant did not deposit the fees fixed by the Tribunal in respect of the claims sought to be urged by it.