1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.198 OF 2009 IN ARBITRATION PETITION NO.170 OF 2009 Inox Air Products Ltd. ....Appellant V/s. Kalyani Gerdau Steels Ltd. (Formally SJK Steel Plant Ltd.) ....Respondent Mr.P.K. Samdani, Senior Counsel with Mr.S.P. Chaturvedi i/b M/s.Malvi Ranchoddas & Co. for the Appellant. Mr.Prasad Dani i/b Mr.Parag Shelke for the Respondent. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATE : 18TH JULY, 2009. P.C. : 1. The Respondent’s present name is Kalyani Gerdau Steels Ltd. 2. Heard Mr.Samdani i/b M/s.Malvi Ranchodas & Co. for the Appellant - Company. Mr.Dani i/b Mr.Shelke appears for the Respondent – Company. 3. This appeal arises from the order dated 26.3.2009 by which the prayer for ad-interim injunction has made in Arbitration Petition No.170 of 2009 filed under Section 9 of the Arbitration and Conciliation Act, 1996 and the Arbitration Petition stood adjourned to 27.4.2009 for final hearing. 4. We are informed that the said Arbitration Petition is still pending. 5. The parties signed a supply agreement on 4.9.2003 at Hyderabad 2 for supply of oxygen, nitrogen and argon and the present Appellant who is the supplier agreed to set up a Cryogenic Air Separation plants for manufacture and supply of oxygen, nitrogen and argon at the site provided by the Respondent. The Appellant is referred to as the supplier and the Respondent is referred to as the buyer in the said agreement. 6. It is the allegation of the Appellant that the Respondent abandoned its supplies and started getting the supplies from some other party and this act on the part of the Respondent was purportedly in breach of clause 4.2 of the said agreement as per the present Appellant. The Appellant therefore, filed Arbitration Petition No.170 of 2009 for injuncting the Respondent from taking supplies from any other party other than the Appellant. 7. In the agreement between the parties, clause 17 deals with arbitration if any dispute or difference or question of interpretation arises between them at any time, about the construction or effect of the agreement or the subject matter thereof. Though the said clause provides for an Arbitral Tribunal, having regard to the nature of the dispute and more particularly the quantum of supplies, the parties have agreed for the appointment of a sole arbitrator and to refer the disputes between them to the said sole arbitrator. This agreement between the parties has been stated across the bar on taking instructions from the respective parties by their learned counsel and it is in the following terms :- “ By consent parties agrees to refer all dispute and difference arising out of the Supply Agreement dated 4th September, 2003 and Modification Agreement dated 1st September, 2008, entered and executed between the parties, which is also subject matter of present Appeal 3 and the above Petition to the Sole Arbitration of Mr.Justice B.N. Srikrishna (Retd.). The Value of the Arbitration will be at Mumbai. The entire costs of the Arbitration proceedings i.e. remuneration to be paid to the Arbitrator and cost of hearing venue shall be borne by the parties equally irrespective of the result of the case and the award given by the Sole Arbitrator shall be final and binding upon the parties.” 8. There is no doubt that on the appointment of the sole arbitrator. Arbitrator Petition No.170 of 2009 pending before this Court would not survive. Both Mr.Samdani and Mr.Dani stated that there were other points which also require consideration even at the interim stage even as regards the aspects dealt with in the impugned order. Instead of our dealing with the questions or even remanding the matter, it was agreed that the parties would apply to the learned arbitrator for interim reliefs. In the circumstances, it would be appropriate to permit either of the parties to apply to the sole arbitrator for any interim relief as they deem fit and to order that while considering such a prayer the learned arbitrator would not bound by the impugned order. The parties may also be at liberty to raise all contentions before the sole arbitrator in addition to those raised before the learned Single Judge. 9. Hence, as agreed between the parties, we hereby appoint Hon’ble Mr.Justice B.N. Srikrishna (Retd.) as the sole arbitrator in the above terms. 10. The Appeal is accordingly disposed off and by consent of the parties, Arbitration Petition No.170 of 2009 also stands disposed off. 11. We have noted down the undertaking of Mr.Dani, the learned counsel for the Respondent that in case the S.M.S. plant requires gas supplies,such supplies will not be procured from any other party till the interim application is decided by the learned arbitrator, provided the application for 4 interim relief is submitted before the sole arbitrator within a period of eight weeks from today. We have also noted down the undertaking of both the parties to abide by any order passed by the learned sole arbitrator including by way of ad-interim or interim relief. They shall accordingly be bound by the same. (S.J.VAZIFDAR, J.) (B.H.MARLAPALLE, J.)