ICOMM TELE LTD. Vs. BHARATH SANCHAR NIGAM LTD

JUDGEMENT

(1.) This Arbitration Application is filed under Section 11(4) & (6) of the Arbitration and Conciliation Act, 1996 for appointment of sole arbitrator to adjudicate the claims and disputes between the applicant and the respondents.

(2.) It is the case of the petitioner that the petitioner is one of the India's largest product designing, Engineering, Development and Turnkey solution providers for the Telecom, Defence, Solar, Power and infrastructure sectors. The 1st respondent invited tender for supply of International Private Leased Circuit (IPLC) Lawful Interception and Monitoring(LIM) Equipment vide tender No.MM/ILD/062006/000304, dated 07.06.2006. As per the tender notice, the eligible bidder should be company registered in India to manufacture the tendered items or a Registered Indian Telecom company duly authorized by foreign/Indian manufacturer of the tendered items, to submit the bid on their behalf and having the Memorandum of Understanding (MoU) with the manufacturer for supply and maintenance support of the tendered equipment during the life span. The petitioner and the respondent No.2 entered into an MoU and Teaming Agreement on 18.08.2006 as required under the Tender stipulation and the same was tailored to meet the requirements of tender's stipulations. The petitioner and the 2nd respondent have acted as a Consortium and have bid for the Tender. After execution of MoU and Teaming Agreement, the petitioner submitted its bid for the Tender floated by the 1st respondent, which were opened on 25.09.2006. The petitioner was a successful tenderer and the 1st respondent issued a purchase order dated 06.08.2007 for supply of equipment at 5 locations namely Chennai, Mumbai, Tuticorin, Ernakulam and Kolkata. In order to fulfill the purchase order of 1st respondent, the petitioner placed purchase orders of the 2nd respondent. The 2nd respondent thereupon supplied the equipment which was installed at the above five locations mentioned above. However, there was an inordinate delay in the testing and commissioning the equipment. The responsibility of testing and commissioning the equipment was squarely with the 2nd respondent. Due to this delay, the 1st respondent has levied liquidated damages on the petitioner in relation to 4 locations. During the execution of the contract, disputes arose between the parties and there was exchange of correspondence. As the disputes could not be resolved, the petitioner got issued legal notice dated 28.03.2017 invoking arbitration clause 20 of the General (Commercial) Conditions of Contract in the BSNL purchase order No.CE/PO/005/2007-08, dated 06.08.2007 requesting the 1st respondent for appointing an arbitrator to settle the disputes between the petitioner and the 1st respondent. Though the notice was served on the 1st respondent, the 1st has not responded to the said notice and failed to appoint an arbitrator. Hence, this application.

(3.) Counter affidavit is filed disputing the claim of the petitioner on merits, but existence of arbitration clause is not disputed and issuance of notice is also not disputed, as such, contentions regarding denial of claim on merits are not required to be considered in this application, as such, the other contentions are not reproduced.