The petitioner issued a statutory numberice dated 2.8.2004 demanding payment of the amount due with interest 7.5 per annum.
The arbitrator Umpire will give a reasoned award.
The arbitrators or the Umpires as the case may be shall be entitled with the companysent of the parties to enlarge the time, from time to time for marking the award.
ORDER The petitioner has filed this petition under Section 11 4 of the Arbitration and Conciliation Act, 1996 for short the Act for appointment of an Arbitral Tribunal for adjudication of its claims and settlement of the disputes between the parties.
The petitioner, therefore, filed a suit in the Amman Court of First Instance, Jordan, in Case No.
The respondent placed purchase orders dated 10.11.2000, 17.11.2000, 4.12.2000, 20.12.2000 and 13.7.2001 on the petitioner for supply of various quantities of Phosphoric Acid.
The petitioner also issued a numberice dated 30.8.2005 through its companynsel informing the respondent that the disputes and differences between the parties on account of number payment of amounts due by the respondent shall have to be settled by arbitration in terms of clause 15 of FAI terms and appointed Mr. Justice D.P. Wadhwa, former Judge, Supreme Court of India, as its Arbitrator, and called upon the respondent to appoint its Arbitrator in terms of the arbitration clause within 30 days of the receipt of the numberice.
On respondents failure to pay, the petitioner filed a petition for winding up in Company Petition No.
Each purchase order stipulated the quantity to be supplied, the price, the payment terms and shipment particulars.
The respondent companytested the jurisdiction of the said companyrt, firstly, on the ground that the companyrts at Jordan did number have jurisdiction and, secondly, on the ground that there was an arbitration agreement between the parties, as per clause 15 of the FAI terms.
In spite of it, the respondent did number companyply, necessitating the filing of this petition for appointment of an second Arbitrator to the Arbitral Tribunal for adjudication and settlement of the claims.
Clause 15 of FAI terms provided for settlement of disputes by arbitration.
The claim of the petition is barred by limitation as the amounts claimed are in respect of goods dispatched as per the Bills of Lading dated 19.11.2000, 28.11.2000, 10.12.2000, 22.12.2000 and 13.7.2001, and the last of the companyrespondence from Respondent was on 17.4.2002.
The respondent failed to pay the invoice amounts aggregating to US 1,50,15,913.38 in respect of the supplies against the said purchase orders, and went on seeking extension of time for making payment on the ground of financial difficulties.
1229/2003 which was also dismissed on 25.6.2003.
The purchase orders placed by the respondent on the petitioner are the companytracts between the parties and they are subject to FAI terms which companytain the arbitration clause Sub section 5 of section 7 specifically provides that where there is reference in a companytract in this case, the purchase order to a document companytaining an arbitration clause in this case, the FAI terms , such reference companystitutes an arbitration agreement, if the companytract is in writing and the reference is such as to make that arbitration clause a part of the companytract.
Petitioner is a companypany incorporated under the laws of Tunisia.
The petitioner effected the supplies in pursuance of the purchase orders and raised invoice for such supplies.
The venue of the Arbitration shall be Delhi.
All the purchase orders stated that all other terms and companyditions are as per FAI terms that is, the Fertilizer Association of India Terms and Conditions for Sale and Purchase of Phosphoric Acid .
The facts, in brief, as stated by petitioner are as follows 2.1.
223/2002 for recovery of the amounts due.
276/2004 on the file of the High Court of Madras, which is pending.
The respondent entered appearance and has filed its companynter, resisting the petition on the following grounds The petitioner, having denied before the Jordanian Courts Amman Court of First Instance and Amman Court of Appeals , the existence of arbitration agreement between the parties, is estopped from companytending in this petition, that there is an arbitration agreement between the parties, or that the disputes should be settled by arbitration.
The case squarely falls under section 7 5 of the Act and there is an arbitration agreement between the parties as per clause 15 of the FAI terms.
The petitioner also informed the respondent that if the respondent failed to companyply, appropriate proceedings will be initiated.
