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49-RPRST8372.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION (L) NO. 8372OF 2013
IN
ARBITRATION PETITION NO. 20 OF 2012
M/s.Raman Feedmills )
A proprietorship Firm having its office )
at House No. 250, Chotti Line, )
Yamunanagar, State of Haryana Through)
its proprietor Mr.RoshalLal ) ..... Petitioner
(Org. Respondent)
VERSUS
M/s.Japfa Comfeeed India Limited )
now converted into )
M/s.Japfa Comfeeed India Private Limited)
Accompany incorporated under the )
Companies Act, 1956, having its corporate)
office at Plot No. 91, Sakure Nagar, Viman)
Nagar, Pune - 411 014, State of Maharashtra)
Through its Authorised Signatory )
Mr.Jivan Madhav Bosale ) ..... Respondent
(Org. Petitioner)
Mr.Rushabh Shah, a/w. Ms.Rita Yadav, i/b. Raval Shah & Co. for the Petitioner.
Mr.Manish K. Vig, i/b. Mr.Tejas Dande for the Respondent.
CORAM : R.D. DHANUKA, J.
DATED : 25th NOVEMBER, 2013
JUDGMENT
By this petition, petitioner seeks recall of the order dated 24 th August, 2013 passed by the designate of the Chief Justice under section 6 of the Arbitration and Conciliation Act, 1996 allowing arbitration application filed by the respondent and ::: Downloaded on - 23/12/2013 20:28:38 ::: kvm 2/5 49-RPRST8372.13 appointment of an arbitrator.
2. Being aggrieved by the said order passed by the learned designate of the Chief Justice, the review petitioner filed Special Leave Petition. By an order dated 24th January, 2013 Supreme Court recorded the submission made by the applicant that though issue was specifically raised in the pleadings before this Court in the affidavit in reply filed by the applicant in the proceedings filed under section 11, that application filed by the respondent under section 8 in the suit filed by the petitioner was pending and thus no such order could be passed by the learned designate of the Chief Justice under section 11. It was submitted that this objection of the applicant was not noticed in the said order passed by the learned designate Judge under section 11(6) of the Act. Supreme Court granted liberty to the petitioner to seek review of the order passed by the learned designate Judge of the Chief Justice and permitted the petitioner to withdraw the Special Leave Petition. Pursuant to the said liberty granted by the Supreme Court, review petitioner filed this review petition.
3. Mr.Shah, learned counsel appearing for the petitioner made two submissions (1) even if cause of action has arisen at Pune, application for appointment of the arbitrator under section 11(6) of the Act ought to have been filed before the appropriate court at Pune and not before the Chief Justice of this Court at Bombay and (2) in view of the application of the respondent under section 8 of the Arbitration and Conciliation Act, 1996 having been filed in the suit filed by the petitioner and the same being pending, application under section 11(6) of the Act before the Chief Justice of this court is not maintainable. Inspite of the objections raised by the review petitioner, in the affidavit in reply in this proceedings, the objections was not noticed by the learned designate Judge of the Chief Justice and has erred in appointing arbitrator under section 11(6) of the Act.
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4. In so far as first submission of the learned counsel that even if the cause of action arises at Pune, appropriate application ought to have been filed under section 11(6) before the appropriate court at Pune is concerned, under section 11(6) application for appointment of the arbitrator has to be filed before the Chief Justice of the court who can delegate his powers to decide such matters. The Hon'ble Chief Justice of this court had designated Dr.D.Y.Chandrachud, J. (as His Lordship then was) to decide the application filed under section 11(6) of the Act. Such jurisdiction was also to decide matters where cause of action had arisen at Pune. In my view, thus there is no substance in the first submission made by the learned counsel that application under section 11(6) ought to have been filed before the appropriate court at Pune and not before the Hon'ble the Chief Justice of this court.
5. In so far as second submission of the learned counsel is concerned, it is not in dispute that the petitioner has filed a suit in the court of Civil Judge (Senior Division), Jagadhri, Haryana in respect of the claim which according to the applicant was due and payable by the respondent to the applicant. It is not in dispute that in the said suit, the respondent had filed an application under section 8 of the Arbitration and Conciliation Act. The said application is pending. On perusal of the application filed under section 11, it is clear that the respondent had raised a demand against the petitioner vide letter dated 22 nd February, 2012. The petitioner did not pay the said amount. Dispute between the parties thus arose under the said agreement dated 1st January, 2008. By the said notice, the respondent called upon the petitioner to appoint an arbitrator in accordance with clause 25 of the said agreement dated 1st January, 2008 and gave consent for the appointment of a retired Sessions and District Judge. Since the petitioner did not give consent to the appointment of the learned arbitrator suggested by the ::: Downloaded on - 23/12/2013 20:28:38 ::: kvm 4/5 49-RPRST8372.13 respondent, respondent filed an application under section 11(6) of the Arbitration and Conciliation Act, 1996 inter alia praying for appointment of an arbitrator.
6. On bare reading of section 11 of the Arbitration and Conciliation Act, it is clear that if a party does not appoint arbitrator inspite of there being agreement and inspite of receipt of notice within 30 days from the date of receipt of such notice, parties issuing notice is entitled to apply for appointment of the arbitrator under section 11(6) before the Chief Justice of the High Court. On perusal of section 8 of the Arbitration and Conciliation Act, 1996, it is clear that the judicial authority before which action is brought in the matter which is subject of the arbitration agreement, before filing statement of defence, the defendants to such suit can make an application for referring the parties to arbitration in view of the existing arbitration agreement.
7. On conjoint reading of sections 8 and 11 of the Arbitration and Conciliation Act, in my view application under section 8 of the Act is not for appointment of the arbitrator but is for referring the parties to arbitration agreement in respect of such dispute, which is subject matter of the arbitration agreement whereas application under section 11(6) of the Act is for appointment of the arbitrator and not for referring the parties to the arbitration. Both provisions are independent and distinct for two different cause of action. In my view merely because application under section 8 has been filed by the respondent in the pending suit filed by the petitioner before the civil court at Haryana for referring the parties to arbitration, there would be no bar to file application under section 11 for appointment of arbitrator under section 11(6) of the Arbitration and Conciliation Act, 1996. In my view, there is no merit in the submission made by Mr.Shah, learned counsel appearing for the applicant that in view of pendency of the application under ::: Downloaded on - 23/12/2013 20:28:38 ::: kvm 5/5 49-RPRST8372.13 section 8 filed by the respondent, application under section 11(6) of the Act was not maintainable.
8. In my view, without going into the issue whether review petition itself was maintainable or not on the ground that application under section 11(6) of the Act was not before the court but was before the Chief Justice, in view of the liberty granted by the Apex Court, I have heard the review petition on merits. In my view there is no error apparent on the face of the record. Petition is thoroughly misconceived and is accordingly dismissed. No order as to costs.
ig [R.D. DHANUKA, J.]
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