lN THE SUPREME COURT OF lNDlA

ClVlL ORlGlNAL JURlSDlCTlON

ARBlTRATlON PETlTlON NO. __ OF 20l4
IN THE MATTER OF
ADLABS Entertainment Ltd.,
30/3l, Sangdewada,
Pen-Pali Road,
PlN-4l0203,
Maharashtra,
lndia. .Petitioner
Versus
l.E. Park S.R.L.,
Soli Bumper Cars,
Via Don P. Borghi 3
42003 Gattatico (RE)
Reggio Emilia, ltaly. .Respondent
To,
Hon'ble the Chief Justice
And his Companion Justices of
The Hon'ble Supreme Court of lndia
PETITION UNDER SECTION 11 OF THE ARBITRATION AND
CONCILIATION ACT, 1996
The Petitioner aboe!entione" re#$e%t&'(() #'b!it# a# 'n"er*
l. The Petitioner, Adlabs Entertainment Ltd. is a Company incorporated in lndia under
the provisions of the Companies Act, l956 having its registered office at 30/3l,
Sangdewada, Pen-Pali Road, PlN-4l0203, Maharashtra, lndia and is engaged inter
alia in the operation of a theme park called "Adlabs lmagica" on approximately l50
acres of land located at Khopoli, Raigad. The theme park is lndia's first and only
international standard theme park offering fun, action, entertainment, dining and
shopping at a single location.
2. The Respondent, l.E. Park S.R.L. Soli Bumper Cars, is a limited liability company
incorporated in ltaly under the provisions of the _____________________ having its
registered office at Via Don P. Borghi 3, 42003 Gattatico (RE), Reggio Emilia, ltaly
and is engaged in the provision of ride systems to various theme parks.
3. That the Particulars under Paragraph 2 (Submission of Request) Appointment of
Arbitrators by the Chief Justice of lndia Scheme, l996 are as follows:
l. The original arbitration
agreement or a duly certified
copy thereof.
A certified copy of the Contract
between the Petitioner and the
Respondent, inter alia, containing the
arbitration agreement between the
parties is annexed along with this
petition as Annexure __.
2. The names and addresses of the
parties to the arbitration
agreement.
ADLABS Entertainment Ltd.,
30/3l, Sangdewada,
Pen-Pali Road,
PlN-4l0203,
Maharashtra,
lndia.
l.E. Park S.R.L.,
Soli Bumper Cars,
Via Don P. Borghi 3
42003 Gattatico (RE)
Reggio Emilia, ltaly.
3. Names and addresses of the
Arbitrators, if any, already
appointed by parties.
Nil
4. Name and address of the person
or institution, if any, to whom any
function has been entrusted by
the parties to the Arbitration
Agreement under the
appointment procedure agreed
upon by them.
Nil
5. Qualification required, if any, of
the Arbitrator by the agreement
of the parties.
Nil
6. An affidavit, supported by the
relevant document, to the effect
that the condition to be satisfied
under sub-section (4) or sub
section (5) or sub section 6 of
section ll, as the case may be,
before making the request to
Chief Justice has been satisfied.
The said affidavit has been filed along
with the Arbitration Petition and is at
Page No. __.
4. ln _________________ the Petitioner informed the Respondent about its
requirements for a complete ride system, viz. JR 30 Roller Coaster referred to as
Bandit Ride ("said Ride"). The Respondent studied the proposal of the Petitioner and
represented to and assured the Petitioner that it has the required expertise and
infrastructure to provide and set-up the said Ride in fully functional condition and
without any defects. The Respondent had further assured the Petitioner that it would
recommend a ride that would be suitable and fit for the purpose intended by the
Petitioner.
5. Acting on the basis of the same recommendation the Petitioner entered into a Ride
System Procurement agreement dated l8
th
August, 20ll (Agreement No.: lE Park
08-l8-20ll-002) ("said Agreement") with Respondent wherein the Petitioner
engaged the Respondent to provide to it a complete ride system viz. JR 30 Roller
Coaster referred to as Bandit Ride for the theme park. The theme park was opened
to the public in April, 20l3 and the said ride commenced operations for the public in
the theme park from l8 April, 20l3. The Petitioner had expected the said ride to be
perfect in all respects.
6. The Respondent was under an obligation under the said Agreement to provide a
complete ride system designed, supplied, built with installation, supervision supplied
and ride commissioned with operator and maintenance training, complete and ready
to operate. The Respondent's obligation includes provision of all labor, materials and
equipment to design, engineer, inspect upon on-site delivery, supervise installation,
commission and adjust the equipment and train maintenance and operations
personnel for the ride system. The operating criteria as represented by the
Respondent was designed to meet the following operating criteria:
(i) Operate for no less than 365 days per year during operating hours with 99%
availability
(ii) Operational life upto l0 years for structural, mechanical and electrical
equipment with normal wear and tear.
7. The Respondent had warranted under clause l7 (a) of the terms and conditions of
the said Agreement that the ride system was merchantable and fit for use for the
particular purpose described in the said Agreement. The Respondent had warranted
that the ride system would be free from defects and deficiencies in design,
workmanship, materials and/ or equipment and provided a two year warranty from
the date of final acceptance of the ride system by the Petitioner and a spare parts
package for one year of operation.
8. Under clause l7 (b) of the terms and conditions of the said Agreement the
Respondent had further specifically warranted that if any defect or deficiency was
discovered due to faulty design, workmanship, materials and/or equipment,
Respondent would have the obligation to repair, replace, redesign, remanufacture,
correct and/or retrofit (collectively the "Corrective Work") the defective item together
with any adjacent structures or facilities that have been (i) displaced or damaged by
so doing; or (ii) damaged as a result of any defect in design, workmanship, materials
and/or equipment at Respondent's own cost within l5 days of intimation by the
Petitioner. Further, under clause 22 of the terms and conditions of the said
Agreement, the respondent provided an indemnity to the Petitioner against losses,
claims, suits, actions, penalties, assessments, liabilities or expenses of any kind or
description arising out of damages or injuries to persons or property arising from in
any way connected with the design, engineering, construction or manufacture of the
equipment.
DISPUTES
9. On 5
th
February, 20l4 the axle of the wheel axle assembly of car 5 and 6 broke off,
resulting in derailment of car 6, which hit column lB, and part derailment of car 5 of
the said Ride resulting in a full coaster stall in track sections 20 to 22 ("lncident").
Two patrons of the ride, including a l6 year old girl, were severely injured during the
lncident. The said lncident not only caused severe injuries to the aforesaid two
patrons but also caused immense emotional trauma to the other 22 patrons on the
said Ride and to the other patrons present at the theme park. The petitioner was
shocked by the said lncident since the Respondent had at all times adopted and
practiced all safety precautions and complied with the operations and maintenance
manuals provided by the Respondent to the Petitioner with respect to the said Ride.
Moreover what was even more shocking was that the incident had occurred in less
than a year of the said Ride being installed thus ruling out wear and tear as a
significant factor. The said lncident took place directly due to manufacturing defects
and deficiencies in the said Ride and was in no manner attributable to the Petitioner.
l0. The said lncident made headlines in print and electronic media for several days
thereby adversely affecting the goodwill and reputation of the Petitioner. The
Petitioner was subjected to inquiries from the police, several statutory authorities and
the press. Ever since the occurrence of the said lncident, the commercial revenues
of the entire theme park were adversely affected as the credibility of the Petitioner
and the other rides in the theme park was lost in the eyes of the public.
ll. lmmediately after the lncident, the Petitioner informed the Respondent about the
lncident. The petitioner also informed the Respondent that the news of the lncident
and its investigation by the police and other statutory authorities was going viral.
Considering the urgency and gravity of the situation the Petitioner requested the
Respondent to immediately send its technical team to the theme park to inspect the
cause of the mishap and to provide further details. The petitioner on its part co-
operated with the Respondent in all possible ways and provided all the necessary
information required by it to investigate into the lncident and submit its report. The
Petitioner thereafter followed up with the respondent a number of times through
emails.
l2. The Respondent's technical expert arrived at the theme park after 3 (three) weeks of
the lncident. However Respondent was unable despite repeated requests to explain
why the lncident took place despite all safety precautions and maintenance manuals
having been followed by the Petitioner.
l3. The Respondent further failed to share important and relevant information regarding
the design and safety certification of the said Ride, which were sought by the
Petitioner post the lncident. lt was evident to the Petitioner from the Respondent's
behavior that it was trying to delay the whole process to evade complying with its
obligations under the said Agreement.
l4. The Petitioner then went ahead to appoint an independent technical expert viz.
MecElec lndustrial Services (P) Ltd. to investigate the cause of the accident and from
the preliminary investigation report submitted by them it was evident that the lncident
had occurred due to a cracked vertical axle either because of inadequate design
considerations or improper inspections and control process control at the
manufacturing stage or both. The same fault was specifically attributable to the
Respondent.
l5. The Respondent further refused to undertake Corrective Work thus breaching its
representations, warranties and obligations under the said Agreement.
NOTICE IN+O,IN- ARBITRATION AND RE.UEST FOR APPOINTMENT OF
ARBITRATOR
l6. lt is submitted that all of the above disputes constitute disputes or difficulties arising
out of or in relation to the said Agreement as specified in the arbitration clause at
Clause 5 of the terms and conditions of the said Agreement.
l7. On the ll
th
March, 20l4 the Petitioner issued a notice (attached hereto as Annexure
__) to the Respondent calling upon it to comply with the following within l5 (fifteen)
days of receipt of the said notice:
a. Pay the entire landed cost of the said Ride i.e. l.5 million USD.
b. Pay all the costs incurred by the Petitioner for doing the civil work for the said
Ride including the costs to be incurred in the future by the Petitioner for removing
the said Ride and its civil work from the theme park amounting to l million USD.
c. Pay 5 million USD towards loss of revenues of the theme park for the 2 (two)
months prior to the notice.
d. Pay 5 million USD towards loss of reputation.
e. Pay 7.5 million USD towards loss of future business for 3 months.
f. Submit a detailed report on the cause of the lncident.
g. Based on the investigation report, issue a clarification in the press that the
lncident took place due to manufacturing defects and deficiencies in the said
Ride and that the Petitioner is in no manner responsible for the same.
The said notice further laid down that failing the above compliance, a dispute would
be construed to have arisen between the Petitioner and the Respondent, and the
arbitration clause of the said Agreement, namely clause 5 of the terms and
conditions of the said Agreement would stand invoked by the Petitioner. The notice
then went ahead to lay down the options for the choice of sole arbitrator before the
Respondent in such a scenario. The options given to the Respondent for choice of
sole arbitrator were:
a. Mr. Justice F. l. Rebello (Retd.) Former Chief Justice Allahabad High Court, lndia
b. Mr. Justice A. V. Sawant (Retd.) Former Chief Justice Kerela High Court, lndia.
l8. The Respondent failed to comply with any condition laid down in the notice dated
ll
th
March, 20l4 within the time period provided in the same and accordingly a
dispute was construed to have arisen and arbitration clause of the said Agreement,
namely clause 5 of the terms and conditions of the said Agreement stood invoked by
the Petitioner at the end of l5 days (i.e. on l0
th
April, 20l4) from the receipt of the
said notice by the Respondent (i.e. on 25
th
March, 20l4) (proof of said receipt
attached hereto as Annexure __). The same invocation also acted as a notice under
section 2l of the Act in respect of the aforesaid disputes.
l9. On the 24
th
April, 20l4, the Petitioner sent a letter to the Respondent seeking the
following details with respect to the said Ride from the Respondent that had been
sought from the Petitioner by the investigating officer investigating the lncident:
a. Processing details of the axle material i.e.
(i) Steel making process
(ii) Secondary working like forging/ rolling
(iii) Heat treatment if any.
b. Certificates of material of axle rod indicating its conformance to specifications
and codes i.e.
(i) Composition
(ii) Microstructure
(iii) Mechanical Properties.
c. Report of the third party if any, who reviewed design, fabrications, installation,
inspection and quality control report during manufacturing and service.
The Respondent has failed till date to provide the said information sought by the
Petitioner in its 24
th
April, 20l4 letter.
20. The Respondent further failed till date [i.e. even after the passage of 30 (thirty) days],
after the said invocation came to fruition on l0
th
April, 20l4, to respond to the options
provided to it by the Petitioner for the choice of sole arbitrator by it. Thus the
Respondent has given up its rights to agree on a sole arbitrator with respect to the
said disputes.
2l. lt is submitted that there is a valid and enforceable arbitration agreement between
the Petitioner and Respondent and the dispute between the parties is a live dispute.
The Petitioner submits that it reserves the right to raise additional claims covered by
its arbitration agreement with the Respondent before the tribunal, where necessary.
22. The Petitioner above named is filing the present petition under section ll of the Act
as the Respondent has failed to communicate its choice of sole arbitrator from
between the 2 (two) arbitrators suggested by the Petitioner as laid down above.
23. lt is submitted that the present arbitration relates to disputes and differences
between the Petitioner and the Respondent arising out of an agreement that is
considered commercial under the laws in force in lndia. lt is further submitted that the
arbitration would be an international commercial arbitration within the meaning of
section 2 (f) of the Act as one of the parties namely the Respondent is incorporated
under the laws of ltaly. This Hon'ble Court has jurisdiction to entertain this petition
under the Act and appoint an arbitrator for resolution of disputes and differences
which have arisen between the parties.
24. The cause of action for the above disputes arose on the l0
th
April, 20l4 when the
request for the disputes mentioned above to be referred to arbitration was received
by the Respondent, and the arbitration proceedings in respect of these disputes is
deemed to have been commenced on that date, and on l0
th
April, 20l4 when the
Respondent was called upon to provide its choice of sole arbitrator from between the
2 (two) choices provided to it, and hence this application is within time and after the
passage of the mandatory time period of 30 (thirty) days from l0
th
April, 20l4.
25. lt is stated that the petitioner has not filed any other request or petition under section
ll of the Act for the appointment of the arbitrator in respect of any disputes or
differences described herein.
PRA/ER
26. lt is, therefore, respectfully prayed that this Hon'ble Court be pleased to
a. Confirm the appointment of either, Mr. Justice F. l. Rebello (Retd.), Former Chief
Justice Allahabad High Court, lndia, or, Mr. Justice A. V. Sawant (Retd.), Former
Chief Justice Kerela High Court, lndia, as sole arbitrator for the disputes
elaborated herein as well as any disputes arising out of or in relation thereto. .
b. Such other and further relief which this Hon'ble Court may deem fit and proper
in the facts and circumstances of the case may be also granted in favor of the
Petitioner and against the respondents.
c. The cost of the proceedings may be also awarded in favor of the Petitioner.
PETlTlONER
THROUGH
(___________________, AOR)
ADVOCATES FOR PETlTlONER
DRAWN ON: l0.05.20l4
FlLED ON:
lN THE SUPREME COURT OF lNDlA
ClVlL ORlGlNAL JURlSDlCTlON
ARBlTRATlON PETlTlON NO. __ OF 20l4
IN THE MATTER OF
ADLABS Entertainment Ltd. .Petitioner
Versus
l.E. Park S.R.L. .
Respondent
AFFIDA+IT
l, ________________, aged about __ years, resident of __________, do hereby
solemnly affirm and state as under:
l. That l am _______________________________________________________ of
the Petitioner company in the present petition under section ll of the Arbitration and
Conciliation Act, l996 and in that capacity am fully conversant with the facts of the
case and as such competent to swear to this Affidavit.
2. For the sake of brevity and to avoid repetition, the Petitioner is not reproducing the
facts as stated in the petition under section ll of the Arbitration and Conciliation Act,
l996 and craves leave of this Hon'ble Court to refer to and rely upon the same at the
time of hearing.
3. l say that l have gone through the accompanying list of dates and events from pages
__ to __ and the arbitration petition from pages __ to __ and l say that the averments
made therein are derived from the records of the case which l believe to be true.
Nothing material is concealed therefrom.
4. l say that the Annexures __ to __ from pages __ to __ filed alongwith the arbitration
petition are true copies of their respective orginals.
5. l say that the Petitioner has made bonafide attempts to amicable settle the matter but
the Respondent has failed to settle the matter amicably. The disputes and
differences between the parties remain unresolved and the Petitioner invoked the
arbitration clause between the Petitioner and Respondent to refer the disputes
between the parties to arbitration on l0
th
April, 20l4. A copy of the notice dated ll
th

March, 20l4, that provides for the invocation of the arbitration clause at the end of
l5 days from the receipt of the said notice by the Respondent, along with a proof of
the receipt of the said notice by respondent, has been filed along with the petition
under section ll of the Arbitration and Conciliation Act, l996.
6. Clause 5 of the terms and conditions of the agreement between the petitioner and
respondent is reproduced herewith:
5. Disputes. All disputes and differences arising out of or in connection with this
contract shall be settled by arbitration in accordance with the provisions of the Indian
Arbitration and Conciliation Act, 1996 including any amendments thereto. The
Arbitral Tribunal shall consist of a ole Arbitrator to be mutually agreed between the
parties. The venue of the Arbitration shall be !umbai.
7. l say that the Respondent has not responded to the said invocation of arbitration
dated l0
th
April, 20l4.
8. l say that the respondent has also failed to communicate its choice of sole arbitrator
from between the 2 (two) arbitrators suggested by the Petitioner simultaneously with
the said invocation.
9. l say that the condition prescribed under section ll(5) of the Arbitration and
Conciliation Act, l996 has been fully satisfied.
VERlFlCATlON
l, the Deponent above named do hereby solemnly affirm and verify that the contents
of paragraphs l to 9 of the above affidavit are true and correct to my knowledge and
belief. No part of it is false and nothing material has been concealed therein.
Verified at _____________ on this l0
th
day of May, 20l4.
DEPONENT