VBC 1 arp44.10-23.12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE ARBITRATION PETITION NO. 44 OF 2010 M/s.Devi Constructions Co. ...Petitioner. Vs. M/s.Sulzon Energy Limited & Ors. ...Respondents. .... Mr.Girish Godbole with Mr.Rompal S.Kohli i/b. Mr.S.R.Ronghe for the Petitioner. Mr.Avinash Singh Gautama i/b. M.Dhruva & Partner for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD, J. December 23, 2010. P.C. : Agreements were entered into between the Petitioner and the Respondents on 1 September and 3 September 2005 for the supply, installation and maintenance of Wing Turbine Generators. The other Respondents are wholly owned subsidiaries of the First Respondent. All the agreements contained a provision for arbitration. Counsel appearing on behalf of the Petitioner has stated before the Court that separate sets of Court fees shall be paid in respect of each of the five Respondents. This shall be done within a period of four weeks from day. By a letter dated 16 July 2010, the Petitioner raised disputes and lodged claims on the VBC 2 arp44.10-23.12 Respondents. The Respondents repudiated the claims by a letter dated 5 August 2010. The arbitration agreement was invoked in the Petitioner’s letter dated 16 July 2010. The arbitration agreement is not in dispute. At the hearing, Counsel appearing on behalf of the Respondents submitted that: (i) The claims which have been raised by the Petitioner are after the period of guarantee was over and hence, the Respondents cannot be held liable; (ii) The performance of the Wind Turbine Generators is dependent on wind flow and in the event of force majeure conditions, the Respondents would not be liable. These are issues which go to the merits of the claims which must be left to the arbitral tribunal to decide. These are not matters which can appropriately be adjudicated upon in proceedings under Section 11(6) of the Arbitration and Conciliation Act, 1996. Undoubtedly, disputes have arisen between the parties. There is an arbitration agreement which has been validly invoked. This Court has jurisdiction to entertain the Petition. VBC 3 arp44.10-23.12 In the circumstances, there shall be a direction to the effect that Shri Justice J.A.Patil, former Judge of this Court shall stand appointed as sole Arbitrator, under the Arbitration and Conciliation Act, 1996 to adjudicate upon the disputes and differences between the parties. The Petition is accordingly disposed of. The Registrar (Judicial) shall forthwith communicate a copy of this order to the sole arbitrator together with a memorandum of address of parties. ( Dr.D.Y.Chandrachud, J.)