Case: M/S ZHEJIANG BONLY ELEVATOR GUIDE RAIL MANUFACTURE CO. LTD Vs. M/S JADE ELEVATOR COMPONENTS

2. The petitioner, company incorporated under the laws of People?s Republic of China having its office at Sanquiao Village, Fuchun Street, Fuyang, China, is engaged in the business of, inter alia, exporting and supplying high quality elevator guiderails,accessories and allied goods. The respondent, a partnership firm based in India having its office at Plot No.455, Road No.11, ?A? Cross Road, GIDC, Kathwada, Ahmedabad – 382430, Gujarat, is engaged in the business of supplying elevator components for use in the modernization of existing lifts and the new design of the elevator.3. The contract, namely, Commission Processing Contract (hereinafter referred to as „the Contract?) was entered into between the parties on 11.09.2014 in respect of supply of certain products under the Contract. In the course of performance of the Contract, as certain differences had arisen and the parties were unable to amicably settle the disputes which fell within the scope of the arbitration clause, the petitioner appointed Justice V.S. Agarwal, former Judge, High Court of Judicature at New Delhi as the sole arbitrator. On 30.03,2018, the petitioner called upon the respondent to consent to the appointment of the sole arbitrator within a period of thirty days from the receipt of the notice. The respondent received the said notice on 31.03.2018 and the respondent in its reply dated 05.04.2018 refused to concur and consent to the appointment of the sole arbitrator. Because of the aforesaid situation, the petitioner has been compelled to move this Court for appointment of the sole arbitrator. When the matter was listed before this Court after service of notice, the learned counsel for the respondent has placed reliance on the reply dated 05.04.2018 given by the counsel for the respondent. In the said reply, the facts asserted by the petitioner have been disputed. That apart, it has been stated that the claims put forth are beyond the provisions of the Contract.

Court's reasoning:
8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail LimitedSubject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of theagreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevantagreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India heldfrom the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration.(2008) 10 SCCIn the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties.