Saarschmiede Gmbh Freiformschmiede v. Bharat Heavy Electricals Ltd

RAJIV SAHAI ENDLAW, J

MARCH 26, 2019 "gsr".. (Corrected and released on 4th April, 2019).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 26th March, 2019 + CS(COMM) 486/2016, IA No.5646/2016 (for condonation of delay of 105 days in re-filing the suit) & IA No.8091/2018 (u/S 8 of the Arbitration & Conciliation Act, 1996). SAARSCHMIEDE GMBH FREIFORMSCHMIEDE .... Plaintiff Through: Mr. Atul Sharma, Mr. Abhinav Agnihotri & Ms. Purva Kohli, Advs. Versus BHARAT HEAVY ELECTRICALS LTD ..... Defendant Through: Mr. Pallav Kumar, Mr. Dibya Nishant & Mr. Gautam Mann, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW IA No.8091/2018 (of the defendant under Section 8 of the Arbitration & Conciliation Act, 1996) 1. This application came up first before this Court on 1st June, 2018 when the following order was passed: "4. The defendant in this suit, now confined only to recovery of money, seeks reference of the parties to arbitration. 5. The counsel for the plaintiff appears on advance notice and seeks time to file reply. 6. On such applications, adjournment cannot be granted automatically for reply, unless it is shown that anything is required to be pleaded. Nothing is stated. 7. The counsel for the plaintiff then states that he has to take instructions, whether there is an arbitration clause and whether annexure, containing the arbitration clause and copy of which has been filed by the defendant along with this application to the purchase order admittedly placed by the defendant on the plaintiff was part of the purchase order or not. 8. The counsel for the defendant/applicant has drawn attention to page 36 of Part-III file being a copy of the purchase order placed by the defendant/applicant on the plaintiff filed by the plaintiff along with the plaint and which is found to inter alia record "With reference to above, we are pleased to place an order on you for the supply of following items, on conditions given below & in annexure PU93". The counsel for the defendant/applicant states that what has been filed by the defendant/applicant along with this application is nothing else but Annexure PU93. 9. The counsel for the plaintiff states that he needs to take instructions, whether the said Annexure PU93 is in the records of the plaintiff. 10. In my view, the same is immaterial. Even if, Annexure PU93 is not in the records of the plaintiff as of today, the plaintiff having accepted the purchase order on the terms aforesaid, even if did not receive Annexure PU93 along with the purchase order, ought to have asked for it or taken a stand that it was not willing to accept the terms of Annexure PU93. The plaintiff admittedly did not do the same and today cannot take the ground that it needs to be verified, whether the said Annexure PU93 is in the record of the plaintiff or not. 11. Moreover, the advance copy of the application was received by the plaintiff much prior to today and instructions, if any required, could have been taken. 12. I may in this regard also notice that the counsel for the defendant/applicant on the past dates of hearing also and as recorded in the orders of the said date has been taking a stand of there being an arbitration agreement between the parties and for this reason also, the plaintiff should have been prepared on the said aspect. 13. In these circumstances, though adjournment sought is not justified, list on 20th July, 2018." 2. Pleadings in the application have been completed and the counsels have been heard. 3. What transpires is, that (i) the defendant / applicant floated an enquiry for purchase of machinery and the plaintiff submitted its offers to the defendant; (ii) the defendant placed four Purchase Orders on the plaintiff in pursuance to the aforesaid enquiry and the offers submitted by the plaintiff and stating as under: "with reference to above, we are pleased to place an order on you for the supply of following items, on conditions given below & in annexure PU93"; (iii) PU93 contains Clause 2 as under: "2. ACCEPTANCE: Please acknowledge the receipt of this Purchase Order by return