(1.) This Original Petition is filed seeking appointment of an Arbitral Tribunal in terms of Clause 6.05 of the Consultancy Agreement to settle the dispute between the parties.
(2.) The petitioner company is engaged in the business of, inter alia, providing engineering and architectural consultancy services for projects relating to port constructions, having incorporated under the laws of Netherlands. It entered into a Consultancy Agreement dated 17.08.1994 (in short, "the Agreement") with the Madras Port Trust for construction of Ennore Port, which is now renamed as Kamarajar Port/the respondent herein. Since disputes arose between the parties, the arbitration clause contained in the agreement was invoked. It is pertinent to mention here that the dispute with respect to the payment/reimbursement of tax was not covered under the arbitration proceedings. An award dated 11.03.2009 was passed, which was modified on 27.04.2009 favouring the petitioner, though some of its claims were rejected. Challenge was made by the respondent to the award in O.P.No.348 of 2013 in vain on 02.06.2014 and this Court directed the respondent to pay the petitioner NLG 3,369,832.48 (Euros 1,529,163.31) ; USD 161,429.56 and INR 2,76,48,974.32 along with interest at the rate of 6% p.a. on the foreign exchange component and 9% on the INR component.
(3.) The petitioner filed E.P.No.47 of 2015, wherein, the respondent agreed to pay the amounts directed to be paid in the aforesaid order of this Court dated 02.06.2014. Accordingly, the respondent filed a Memo of Calculation on 19.08.2015 stating that certain amounts would be deposited. After the disposal of the execution petition, the petitioner sought for furnishing TDS Certificate from the respondent, which was given only on 15.07.2016 and at that time only, the petitioner came to know that the respondent remitted only a sum of INR.1,24,44,359/-, which is 4.5% of the foreign exchange component of INR.21,75,05,004/- instead of depositing INR.2,44,07,134.40 and the balance tax liability is now INR.1,19,62,775/-. The petitioner requested the respondent to remit the balance of the tax liability amount. Since they failed to oblige, the petitioner remitted the said amount and sought for reimbursement along with interest as per Clause 4.01(g) of the Agreement. Even then the respondent failed to respond.