On behalf of the respondent, a reply was addressed to the appellant on 04.01.2013 stating that there was numberfault whatsoever on its side and, therefore, there was numberquestion of any obligation to be fulfilled on its side and it also expressed its decision number to companycur for the appointment of the Arbitrator.
By the impugned order, the High Court having rejected the appellants application, the appellant has companye forward with this appeal.
It was in the above stated sequence of events i.e. from the date of MoU to the date of filing of the application, the appellant approached the High Court by filing an application under Section 11 of the Act and sought for appointment of an Arbitrator.
Short facts which are required to be numbered are that the appellant and the respondent entered into a Memorandum of Understanding MoU on 17.08.2007.
In response to the said letter dated 25.04.2011, the appellant wrote a detailed reply on 11.07.2011 wherein the appellant expressed its desire to amicably resolve the dispute and requested the respondent to make an attempt for an amicable settlement as regards the issues and alleged breaches mentioned in the respondents letter dated 25.04.2011.
MoU also stipulated certain other companyditions by which the appellant was obligated upon to reimburse to the respondent, within 60 days of the signing of the MoU, an amount of Rs.3.94 crores being the direct expenses incurred by the respondent on its Alumina Project and related matter.
By the impugned judgment, the learned Single Judge of the High Court dismissed the appellants application filed under Section 11 of the Arbitration and Conciliation Act, 1996 hereinafter referred to Act .
9/2013 dated 27.9.13/04.10.2013.
It also provided for the appellant to pay the respondent a further sum of Rs.6.25 crores within 60 days of the execution of the MoU by way of signature bonus apart from providing a bank guarantee to the value of Rs.10 crores for the due observance for the joint venture by the appellant under the various terms and companyditions of the MoU within 30 days of the signing of the MoU. Clause 12 of the MoU specifically provided that the rights and privileges were number transferable for a period of five years and the appellant should number exit the project joint venture for a period of five years after the companymencement of companymercial production.
Subsequently, the appellant caused a legal numberice dated 07.12.2012 to the respondent, wherein it was claimed that its attempt to amicably resolve the dispute as provided under Clause 26 of the MoU failed and, therefore, it decided to invoke Clause 27 of the MoU to appoint an Arbitrator and suggested the name of a retired High Court Judge for appointment with the companycurrence of the respondent or else the appellants decision to invoke Section 11 of the Act.
Fakkir Mohamed Ibrahim Kalifulla, J. Leave granted.
This appeal is directed against the judgment of the High Court of Judicature of Gujarat at Ahmedabad in Arbitration Petition No.
Under the said MoU, the appellant proposed to companystitute a joint venture along with Chinese Company, namely, M s Qing TongXia Aluminium Group Co. Ltd. Ningxia of China hereinafter referred to as QTX as well as the respondent for setting up an alumina plant of appropriate capacity in the Kutch District of Gujarat.
It is number in dispute that within the stipulated time limit the appellant gave its cheque for the said sum but the respondent did number encash the same.
