Judgment 1 mca697.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION (ARB.) NO. 697 OF 2015
Manoj S/o. Shripal Thakur,
A/a 40 years, Occu.: Business,
R/o. Subhas Ward, Ballarpur,
Tq. Ballarpur, District : Chandrapur.
ig .... APPLICANT.
// VERSUS //
1. Union of India,
Through General Manager
Central Railway CST, Mumbai,
Mumbai.
2. Divisional Manager (Commercial)
Central Railway, Nagpur,
Tq. & District : Nagpur.
.... NON-APPLICANTS
.
___________________________________________________________________
Shri A.R.Wagh, Advocate for Applicant.
Shri P.S.Khubalkar, Advocate for Non-applicant.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : MAY 02, 2016.
ORAL JUDGMENT :
1. Heard learned advocates for the respective parties.
2. RULE. Rule made returnable forthwith.
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3. The applicant has filed this application under Section 11 of the Arbitration and Conciliation Act, 1996 praying that the Arbitrator be appointed to resolve the dispute between the applicant and the non-
applicants.
4. Shri A.R. Wagh, advocate has referred Clause 35 of the of the Pay and Park Agreement and has submitted that the dispute between the parties is required to be resolved by an Arbitrator as per this clause.
5. The non-applicants have opposed the application on the ground that the dispute between the parties is not covered by Clause 35 of the Pay and Park Agreement. It is submitted that the dispute falls under Clause 8 and will be covered by Clause 30 of the Pay and Park Agreement and the disputes covered by clauses 5.1, 9, 13 and 21 of the Pay and Park Agreement are only required to be referred to the Sole Arbitrator and not all the disputes, like the present one, are to be referred to the Arbitrator. It is submitted that as the Arbitrator will not have jurisdiction to resolve the dispute between the parties, it need not be referred to the Arbitrator. In support of the submission, reliance is placed on the judgment given in the case of Harsha Constructions Vs. Union of India, reported in (2014) 9 SCC
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Judgment 3 mca697.15.odt Alternatively, it is submitted that if at all the dispute is arbitrable, then it has to be referred to the Arbitrator to be appointed by the General Manager, Central Railway as per clause 35 of the Pay and Park Agreement. The learned advocate has argued that if this Court comes to a conclusion that the dispute raised by the applicant is required to be referred to the Arbitrator, then General Manager, Central Railway will appoint the Arbitrator.
6. In reply, the learned advocate for the applicant has submitted that the Arbitrator cannot be appointed as per Clause 35 of the Pay and Park Agreement in view of the provisions of Section 12(5) of the Arbitration and Conciliation Act, 1996 (as amended). It is further submitted that the Non-
applicants have not taken any steps to appoint the Arbitrator and therefore, they have forfeited the right to appoint the Arbitrator.
The learned advocate has further submitted that the dispute between the parties relates to forfeiture of the security deposit of the applicant and it will be covered by clause 9 of the Pay and Park Agreement.
It is argued that the Arbitrator appointed by this Court can rule on his jurisdiction and decide whether the dispute between the parties is arbitrable or not. In support of the submission reliance is placed on the judgment given in the case of Arasmeta Captive Power Company Private Limited Vs. Lafarge India Private Limited, reported in AIR 2014 SC 525.
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7. After considering the submissions made by the learned advocates for the respective parties, I find that the dispute raised by the applicant is a live claim and cannot be said to be the stale claim. This Court has jurisdiction to entertain and decide the application filed by the applicant.
Considering the proposition of law laid down in the judgment given in the case of Arasmeta Captive Power Pvt. Ltd. (supra), in my view, it would be appropriate that the Arbitrator should be appointed and it should be left to the learned Arbitrator to rule over his jurisdiction.
8. Hence, the following order :
i) Shri S.D. Mohod, Retired District Judge is appointed as Arbitrator to resolve the dispute between the applicant and the non-applicants.
ii) The applicant and the non-applicants shall pay the fees of the learned Arbitrator directly.
iii) The applicant and the non-applicants shall deposit Rs.Twenty Five Thousand each with the Registry of this Court within six weeks towards security of the fees of the learned Arbitrator.
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Judgment 5 mca697.15.odt
v) In addition, the applicant shall deposit Rs.Five Thousand with
the Registry of this Court within six weeks towards processing charges.
vi) The learned Arbitrator shall decide the issue as to whether the dispute between the parties is arbitrable or not.
The application is allowed in the above terms. In the circumstances, the parties to bear their own costs.
JUDGE RRaut..
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