Calcutta High Court Harji Engineering Works Pvt. Ltd vs Bharat Heavy Electricals Limited on 5 December, 2023 OCD3 ORDER SHEET AP/700/2023 Ordinary Original Civil Jurisdiction ORIGINAL SIDE (Commercial Division) HARJI ENGINEERING WORKS PVT. LTD. VS BHARAT HEAVY ELECTRICALS LIMITED BEFORE: The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA Date : 5th December, 2023. Appearance: Mr. Sirsanya Bandopadhyay, Adv. Mr. Rahul Kumar Singh, Adv. ...for the petitioner Mr. Rohit Das, Adv. Ms. Kishwar Rahman, Adv. ...for the respondent The Court: The respondent's resistance to appointment of an Arbitrator was initially based on two planks. The first was of the work order, containing the arbitration clause being an unstamped document and second that the petitioner's notice invoking the arbitration agreement was a defective notice. The first objection has been taken care of since the petitioner has assessed the work order to stamp duty and has paid the assessed stamp duty; the supplementary affidavit is on record. The Court hence is now confronted with the second objection, namely, whether the notice issued by the petitioner under Section 21 of The Arbitration 2 and Conciliation Act, 1996, is a proper notice or whether the notice suffers from some defect. Learned counsel appearing for the parties have taken the Court through the relevant documents, beginning with the arbitration clause in the work order dated 31st May, 2021. The relevant clause is at 35.1.1. For better understanding of the dispute, the relevant part of the clause is set out below: "The Notice shall contain the particulars of all claims to be referred to arbitration is sufficient detail and shall also indicate the monetary amount of such claim. The arbitration shall be conducted by a sole arbitrator to be appointed by the Head of the BHEL Power Sector Region issuing the Contract within 60 days of receipt of the complete Notice. The language of arbitration shall be English." The extracted part shows that the notice invoking the arbitration clause shall contain particulars of (a) all claims in sufficient detail and (b) indicate the monetary amount of such claim. The question hence is whether the Section 21 notice contained the necessary details as required by the arbitration Agreement. The petitioner's Section 21 notice of 28th July, 2023, outlined in paragraph 8 thereof, speeches the heads on which the petitioner made its claims against the respondent. The heads which have been specifically stated are damages towards wrongful termination at the risk and cost of the petitioner, loss of profit, business loss, idling, harassment and mental agony, 3 actual costs of litigation, plant and machinery and interest in terms of Section 16 of the MSMED Act, 2006. Paragraph 8 quantifies the monetary amount of the claims under the various heads at Rs.3035 crores and also says that the particulars will be detailed in the claim petition. The respondent replied to this notice on 29th August, 2023 as well as by mail on 11th September, 2023 asking for further details from the petitioner in respect of the Section 21 notice. The petitioner has approached the Court at this stage. Section 21 of the 1996 Act does not require any details particulars to be given in the notice for invocation save and except that the notice would mark the commencement of the arbitral proceedings in respect of a particular dispute commencing on the date on which a request for that dispute to be referred to arbitration is received by the respondent. In that sense, the starting point of the dispute, in the present case, would be 28th July, 2023. The respondent's emphasis on the requirement of Clause 35.1.1/the arbitration clause is an instance of overemphasis and in any event subject to interpretation. The arbitration clause simply states that the notice shall contain sufficient detail and indicate the