The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 17.09.2021 ARB.P. 693 2021 JAKSON POWER PVT LTD. Petitioner Through Mr.Vaibhav Mishra & Mr.Ekansh Mishra Advs. VIKRAM SOLAR PVT. LTD. Through Ms.Mamta Tiwari Adv. Respondent HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENTThe present petition has been filed by petitioner seeking appointment of a Sole Arbitrator under the provisions of Section 11(6) of the Arbitration and Conciliation Act 1996. Petitioner a private limited company with the object of installing establishing developing commissioning and maintaining two Solar Power Plants each of 10 MW(AC) capacity entered into an agreement with the respondent to purchase Solar Photo Voltaic modules under Special Purchase Agreement dated 06.08.2012. As per the agreement respondent undertook ARB.P. 693 2021 to sell supply and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013. As per the version of petitioner he informed the respondent that his products are sub standard quality and they are not even generating minimum guaranteed output wattage. Petitioner also engaged an independent firm “PV Diagnostics” to inspect the specification and condition of the respondent’s modules whereby as per its report dated 05.07.2018 confirmed that respondent’s modules are defective show full compound partial cracks snail trail and bus bar corrosion in several places. The report of the PV Diagnostics was supplied to the respondent in the month of September 2018. It is submitted that in response to the complaints of the petitioner respondent conducted various site inspections but failed to repair the defective modules or replace them which has resulted in petitioner being unable to achieve the minimum guaranteed power output which causes financial losses to the petitioner. Counsel for the petitioner submits that in such circumstances petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Further submitted that ARB.P. 693 2021 petitioner called upon the respondent to rectify their breaches and replace the faulty modules within a period of two weeks of the receipt of the notice. However respondent sent a reply dated 13.05.2020 wherein refuted allegations alleged by the petitioner and stated that the reason for low performance was mishandling and mismanagement at the hands of the petitioner. Thereafter petitioner sent notice dated 05.08.2020 arbitration as per Clause 14 of the Agreement read with section 21 of the Arbitration and Conciliation Act 1996 and nominated its Arbitrator to which no response has been given by the respondent till date. During the course of hearing learned counsel appearing for the parties pressed that this Court may appoint Arbitrator to adjudicate the disputes pending amongst the parties. During the pendency of the present petition parties tried to settle their disputes out of the court however could not reach to some conclusion. Accordingly Justice A.K. Sikri former Judge of the Hon’ble Supreme Court is appointed as the sole Arbitrator to adjudicate the dispute between the parties. 10. The fee of the learned Arbitrator shall be governed by the Fourth ARB.P. 693 2021 Schedule of the Arbitration and Conciliation Act 1996. 11. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. 12. With aforesaid directions the present petition is accordingly disposed of. SEPTEMBER 17 2021 JUDGE SURESH KUMAR KAIT) ARB.P. 693 2021 

Summary: Justice (Retd.) A.K. Sikri was appointed as the sole arbitrator by Hon’ble Mr. Justice Suresh Kumar Kait in the case of Jakson Power Pvt. Ltd. Versus Vikram Solar Pvt. Ltd. [ARB.P. 693/2021]. The facts of the present case are such that the petitioner agreed with the present respondent to purchase the Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012. According to the present agreement the respondent is required to sell, supply, and deliver SPV modules in Rajasthan of technical specification amounting to Rs.100.625 crores between September 2012 to January 2013. The agreement between the parties was to purchase Solar Photo Voltaic modules under the Special Purchase Agreement dated 06.08.2012. According to the petitioner, the respondents were informed that the products are of sub-standard quality and not generating the minimum amount of power guaranteed. The petitioner engaged an independent firm named “PV Diagnostics” to check the specification of the products, the firm found that the products were defective themselves, the report by the firm confirmed that the modules of the respondent were defective, has partial cracks, snail trails and also has bus bar corrosion in several places, thus in such circumstances, petitioner was constrained to send legal notice dated 17.02.2020 to the respondent for breach of Article 10 of the Agreement. Whereas the respondent’s claim is such that according to the site inspections committed by the respondent, the low power being generated by the product is due to the mishandling and mismanagement at the hands of the petitioner. Thereafter the petitioner invoked the arbitrator and nominated its arbitrator, as per Clause 14 of the Agreement, read with section 21 of the Arbitration and Conciliation Act, 1996, and nominated its Arbitrator, to which no response has been given by the respondent to date. The Parties had requested the present court to adjudicate the appointment of an arbitrator to adjudicate the dispute which is pending in front of the parties. After the request of the parties, the present High Court is pressed to appoint an arbitrator to be appointed to settle the dispute between the parties. Accordingly Justice (Retd.) A.K. Sikri is appointed to adjudicate the present dispute. The fees of the present arbitrator shall be decided according to the fourth schedule of the arbitration and conciliation act, 1996, and in compliance with section 12 of the act. After this appointment, the present petition is dismissed by the High Court.