w w w . L a w y e r S e r v i c e s . i n



M/s. Wiltech Software Solutions Pvt. Ltd. represented by Ashok Mammen General Manager v/s Abbf Bau Soft AG & Another


Company & Directors' Information:- R S SOFTWARE (INDIA) LTD. [Active] CIN = L72200WB1987PLC043375

Company & Directors' Information:- C K SOFTWARE PRIVATE LIMITED [Active] CIN = U72501DL2000PTC106184

Company & Directors' Information:- A. M. SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U70101WB1997PTC084181

Company & Directors' Information:- K K SOFTWARE PRIVATE LIMITED [Active] CIN = U72900DL2009PTC193030

Company & Directors' Information:- SOFTWARE AG (INDIA) PRIVATE LIMITED [Active] CIN = U72200KA2003PTC057200

Company & Directors' Information:- M. J. SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72900DL2016PTC304813

Company & Directors' Information:- R V SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U51909DL2009PTC186716

Company & Directors' Information:- A K C SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128462

Company & Directors' Information:- P AND P SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1994PTC057212

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200GJ1995PTC025791

Company & Directors' Information:- WILTECH SOFTWARE SOLUTIONS PRIVATE LIMITED [Under Process of Striking Off] CIN = U72200KL1996PTC010608

Company & Directors' Information:- N. D. SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG1998PTC029778

Company & Directors' Information:- I S SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72300DL2009PTC190772

Company & Directors' Information:- T AND H SOFTWARE PRIVATE LIMITED [Active] CIN = U72200UP2000PTC025638

Company & Directors' Information:- S V H SOFT PVT LTD [Strike Off] CIN = U72900DL1999PTC100422

Company & Directors' Information:- Q SOFT SOLUTIONS (INDIA) PRIVATE LIMITED [Active] CIN = U72200TZ2000PTC009148

Company & Directors' Information:- K K SOFTWARE SOLUTIONS PRIVATE LIMITED. [Active] CIN = U72100DL1999PTC101139

Company & Directors' Information:- M S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133997

Company & Directors' Information:- ASHOK SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC136808

Company & Directors' Information:- G A S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC127546

Company & Directors' Information:- B B SOFTWARE LTD [Strike Off] CIN = L30009WB1995PLC072361

Company & Directors' Information:- D V SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72900WB2011PTC158651

Company & Directors' Information:- A K SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72900TN2006PTC058887

Company & Directors' Information:- H K SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200WB2001PTC093967

Company & Directors' Information:- J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TZ2000PTC009229

Company & Directors' Information:- GENERAL SOFTWARE SOLUTIONS LIMITED [Strike Off] CIN = U72200OR2000PLC006078

Company & Directors' Information:- M S SOFT SOLUTIONS PVT LTD [Strike Off] CIN = U72900DL1999PTC101474

Company & Directors' Information:- G V SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200TG2007PTC053991

Company & Directors' Information:- T X S SOFTWARE SOLUTIONS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72200TG2007PTC055470

Company & Directors' Information:- K S M SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC128463

Company & Directors' Information:- R B SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC140322

Company & Directors' Information:- SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72200RJ1995PTC010577

Company & Directors' Information:- R J SOFTWARE PRIVATE LIMITED [Active] CIN = U72200DL2005PTC133815

Company & Directors' Information:- R M G SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200TN2006PTC058855

Company & Directors' Information:- G V S SOFT SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200TZ2007PTC013744

Company & Directors' Information:- I & I SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TN2005PTC056262

Company & Directors' Information:- D F SOFTWARE INDIA PRIVATE LIMITED [Strike Off] CIN = U72200TZ2003PTC010629

Company & Directors' Information:- C L SOFT PRIVATE LIMITED [Active] CIN = U72200TG2000PTC034995

Company & Directors' Information:- SOFT SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U33111TN1988PTC015259

Company & Directors' Information:- D SOFT INDIA PRIVATE LIMITED [Active] CIN = U72300TN2002PTC048782

Company & Directors' Information:- E. C. SOFTWARE INDIA PRIVATE LIMITED [Active] CIN = U72900TN2007PTC063486

Company & Directors' Information:- Q 3 INDIA SOFTWARE PRIVATE LIMITED [Active] CIN = U72900TN2007PTC065786

Company & Directors' Information:- K Y SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC136072

Company & Directors' Information:- T M I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2005PTC036299

Company & Directors' Information:- A I SOFT PRIVATE LIMITED [Strike Off] CIN = U72100KA1991PTC011568

Company & Directors' Information:- B C L SOFTWARE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U30007MH1999PTC117922

Company & Directors' Information:- Q SOFT INDIA PRIVATE LIMITED [Strike Off] CIN = U99999MH2001PTC130725

Company & Directors' Information:- SOFTWARE SOLUTIONS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72200MH1988PTC047924

Company & Directors' Information:- S S R SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200TG1999PTC033031

Company & Directors' Information:- M I S SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TN2008PTC068694

Company & Directors' Information:- A. T. SOFTWARE PRIVATE LIMITED [Active] CIN = U72200TG1996PTC023841

Company & Directors' Information:- J A K SOFTWARE PVT LTD [Active] CIN = U72200DL2001PTC111929

Company & Directors' Information:- R R SOFTWARE PVT LTD [Under Process of Striking Off] CIN = U72200KL1991PTC006051

Company & Directors' Information:- A M H SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC132410

Company & Directors' Information:- K SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72200PN2001PTC016012

Company & Directors' Information:- P D A SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2003PTC123465

Company & Directors' Information:- K C SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL1989PTC036923

Company & Directors' Information:- J P SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200PY2003PTC001720

Company & Directors' Information:- S & P SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72100TN2008PTC068960

Company & Directors' Information:- I SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72300MH2012PTC225903

Company & Directors' Information:- V M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900PN2010PTC136847

Company & Directors' Information:- M K R SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U01122TG2004PTC044148

Company & Directors' Information:- P V N SOFT SOLUTIONS PRIVATE LIMITED [Active] CIN = U72200TG2009PTC064926

Company & Directors' Information:- M N T SOFT PRIVATE LIMITED [Active] CIN = U72200TG2013PTC087421

Company & Directors' Information:- T - SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72900TN2011PTC079830

Company & Directors' Information:- T K SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72900TN2015PTC100464

Company & Directors' Information:- K U B SOFT SOLUTIONS PRIVATE LIMITED [Active] CIN = U72900TG2009PTC063634

Company & Directors' Information:- S H SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72900TG2009PTC065812

Company & Directors' Information:- S K SOFT SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72300UP2013PTC058742

Company & Directors' Information:- E SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72300UP2016PTC076258

Company & Directors' Information:- H M SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200HP2011PTC031756

Company & Directors' Information:- H P S SOFT SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72200CH2005PTC027933

Company & Directors' Information:- S N R SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72900DL2012PTC243073

Company & Directors' Information:- R K R SOFTWARE SOLUTIONS PRIVATE LIMITED [Active] CIN = U72200DL2004PTC130818

Company & Directors' Information:- C M S SOFTWARE PRIVATE LIMITED [Active] CIN = U74899DL2005PTC142352

Company & Directors' Information:- S M I T SOFTWARE COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL2006PTC144816

Company & Directors' Information:- A D SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200KA2002PTC030722

Company & Directors' Information:- C P SOFT PRIVATE LIMITED [Strike Off] CIN = U74999TG2000PTC035803

Company & Directors' Information:- H. A. N. R. E. J SOFTWARE PRIVATE LIMITED [Strike Off] CIN = U72200TG2008PTC062044

Company & Directors' Information:- U K SOFTWARE SOLUTIONS PRIVATE LIMITED [Strike Off] CIN = U72400TN2008PTC069019

    Arbitration Request No.12 of 2014

    Decided On, 30 July 2014

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE V. CHITAMBARESH

    For the Petitioner: K. Jaju Babu, Sr. Advocate, M.U. Vijayalakshmi, Jikku Seban George, Advocates. For the Respondents: R1 & R2, Paritosh Jaiswal, P. Jayabal Menon, Jagan George, Advocates.



Judgment Text

1. This Arbitration Request has been placed before me as the person designated by the Chief Justice of this Court to act under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('the Act' for short). The applicant is a software company engaged in the business of developing, selling and exporting computer software and providing computer consultancy services. The respondents are a company engaged in developing software for construction business and other standard software and its Chief Executive Officer. Annexure-B Foreign Collaboration Agreement was entered into by the applicant and the respondents whereunder they agreed to work together in developing computer software. Later disputes arose between the applicant and the respondents as regards the settlement of bills as evident by Annexure-E and Annexure-F e-mails exchanged. The respondents by Annexure-G letter purported to cancel the collaboration agreement unilaterally which was however not accepted by the applicant in Annexure-H letter. The applicant finally issued Annexure-I letter demanding resolution of the dispute by arbitration which was not acceded to by the respondents in Annexure-J e-mail. It is under these circumstances has the Arbitration Request been filed to appoint a sole Arbitrator to resolve the dispute in terms of Section 11(6) of the Act.

2. The applicant relies on Clause 25 of Annexure-B Foreign Collaboration Agreement which is extracted hereunder:

"All disputes, questions or differences etc., arising in connection with this agreement shall be referred to a single arbitrator in India in case parties agree up on one, otherwise two arbitrators in India, one to be appointed by each party in accordance with and subject to the provisions of the Arbitration Act, 1940 or any other enactment or statutory modification thereof for the time being in force."

The respondents on receipt of notice in the Arbitration Request have filed a counter affidavit raising a preliminary objection on its maintainability in addition to the defence on merits. The respondents contend that the dispute in the instant case is between companies incorporated in India and abroad to be resolved by international commercial arbitration. The respondents maintain that only the Chief Justice of India or the person or institution designated by him can appoint an Arbitrator in an international commercial arbitration. The plea in essence is that I lack jurisdiction to appoint an Arbitrator to resolve the dispute between the parties and that the Arbitration Request is liable to be dismissed.

3. I heard Mr.K.Jaju Babu, Senior Advocate on behalf of the applicant and Mr.Paritosh Jaiswal, Advocate on behalf of the respondents.

4. 'International commercial arbitration' has been defined under Section 2(1)(f) of the Act as follows:-

(f) "international commercial arbitration" means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is - (i) an individual who is a national of, or habitually resident in, any country other than India; or 

(ii) a body corporate which is incorporated in any country other than India; or

(iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or

(iv) the Government of a foreign country;

The applicant is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at Thiruvananthapuram in the State of Kerala in India. The first respondent is a company incorporated under the Law of Switzerland having its registered office at Bosingen in Switzerland and the second respondent is a Swiss national. Thus the dispute arise out of legal relationship where one of the parties is a body corporate incorporated in any country other than India. The second respondent who is also arrayed as one of the contracting parties is an individual who is a national of or habitually resident in a country other than India. The legal relationship between the parties is contractual in the form of Foreign Collaboration Agreement considered as commercial under the law in force in India. Thus the dispute arising out of the legal relationship between the applicant and the respondents can be resolved by international commercial arbitration only.

5. Sub-sections (6), (9) and (12) of Section 11 of the Act which are germane are extracted hereunder:-

(6) Where, under an appointment procedure agreed upon by the parties,-

(a) a party fails to act as required under that procedure; or

(b) the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or

(c) a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.

(7) x x x x x

(8) x x x x x

(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.

(10) x x x x x

(11) x x x x x

(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in an international commercial arbitration, the reference to "Chief Justice" in those sub-sections shall be construed as a reference to the "Chief Justice of India".

(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to "Chief Justice" in those subsections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) or sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

It is evident from Section 11(9) of the Act that only the Chief Justice of India or the person or institution designated by him can appoint an Arbitrator in an international commercial arbitration. The reference to the 'Chief Justice' shall be construed as a reference to the 'Chief Justice of India' in international commercial arbitration. The reference to the 'Chief Justice' shall be construed as a reference to the 'Chief Justice of the High Court' in the case of any other arbitration. The above aspects are clarified by sub-sections (12) (a) and (b) of Section 11 of the Act noticing the difference between international commercial arbitration and any other arbitration.

6. National Aluminium Co. Ltd. v. Metalimpex Ltd. [(2001) 6 SCC 372] dealt with an International Commercial Arbitration involving an Indian company and a Bangladeshi company. The expression "International Commercial Arbitration" was explained in Rodemadan India Ltd. v. International Trade Expo Centre Ltd. [2006 (11) SCC 651] as follows:-

The situation is one of a dispute between the petitioner, which is a foreign company and the respondent and is therefore, an "international commercial arbitration" within the meaning of Section 2(1)(f) of the Act.

The inter-play between sub-sections (6) and (12) of Section 11 of the Act in regard to the jurisdiction to appoint an Arbitrator was discussed in M/s.HRD Corporation v. GAIL (India) Ltd. [184 (2011) DLT 390]. It was held therein as follows:-

26. A Conjoint reading of the aforementioned provisions especially the interplay between Section 2(f) read with Section 11(6) and Section 11(12) makes it abundantly clear that the legislature has intentionally carved out a fine distinction between matters relating to the "any other arbitration" and "international commercial arbitration" when it comes to the process of the appointment of the arbitrator.

27. Section 11(12) clarifies all the doubts in explicit terms by stating that when it comes to the matters referred to in sub section (4), (5) and (6) arising in an international commercial arbitration, the reference to the term Chief Justice shall be construed as reference to the Chief Justice of India.

28. This leaves no room for doubt that Section 11(6) is the enabling provision which empowers the High court, in the present case this court as well as the Supreme Court for appointment of the arbitrator. However, the designated court changes depending upon the nature of arbitration. In the case of international commercial arbitration, the Supreme Court will exercise powers vested under Section 11 (6) by virtue of the clear terms of Section 11(12) sub clause (a) read with Section 11 (6), on the other hand in the case of any other arbitration, the same powers vested in it sh

Please Login To View The Full Judgment!

all be exercised by the High Court in view of the operation of Section 11(6) read with Section 11(12)(b) of the Act. The jurisdiction to appoint an Arbitrator in the International Commercial Arbitration on hand vests with the Chief Justice of India or the person or institution designated by him. Only the jurisdiction to appoint an Arbitrator in the case of any other arbitration can be exercised by the Chief Justice of this Court or the person or institution designated by him. It necessarily follows that the present Arbitration Request filed under Section 11(6) of the Act to appoint an Arbitrator has to fail. The applicant faced with this situation has filed a memo seeking to withdraw the Arbitration Request with liberty to move the Supreme Court for the same relief. The respondents do not oppose the prayer to withdraw the Arbitration Request and the same is therefore allowed without prejudice to make a motion before the appropriate forum. The Arbitration Request is dismissed as withdrawn. No costs.
O R