Bombay High Court
M/S. Ajmera Habitat Pvt. Ltd vs Jidnyasa Co-Operatvie Housing ... on 9 August, 2016
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO.83 OF 2014
M/s.Ajmera Habitat Pvt. Ltd. )
A private Limited Company incorporated )
and registered under the provisions of )
Companies Act, 1956 and having its )
registered office at - )
Citi Mall, 2nd Floor, Link Road, )
Andheri (West) ,Mumbai - 400 053. ) ...Petitioner
....Versus....
Jidnyasa Co-operative Housing Society )
Limited, A Co-operative Housing Society )
classified as Housing Society registered )
under the provisions of the Maharashtra )
Co-operative Societies, Act, 1960 and )
having its address at - Khidkali-Desai, )
Post Padale, Taluka and district Thane )
)
AND HAVING ITS OFFICE AT )
)
Summons to be served on )
Shop No.1, Trimbakeshwar Society )
Ground Floor, Opp. Ashwini Motors, )
Edulji Road, Charai, Thane ( W) - 400 601 ) ...Respondent
Mr.A. Kumbhakoni, Senior Counsel with Mr.Shardul Singh i/b
Mr.Vaibhav Gaikwad for the Petitioner.
Mr.R.P. Mudholkar for the Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 28TH JULY, 2016
PRONOUNCED ON : 9TH AUGUST, 2016
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ORAL JUDGMENT :-
1. By this petition filed under section 11(6) of the Arbitration &
Conciliation Act, 1996 (for short "the Arbitration Act"), the petitioner
seeks appointment of an independent person as a sole arbitrator to
adjudicate upon all the disputes and differences between the parties
arising out of the Development Agreement dated 26 th September,
2014. Some of the relevant facts for the purpose of deciding this
arbitration petition are as under :
2.
On 26th September, 2014, the petitioner and the
respondent entered into a Development Agreement in respect of the
property situated at village Khidkali on the terms and conditions
recorded therein. Clause 16 of the said Development Agreement
provided for arbitration agreement.
3. The dispute arose between the parties. The petitioner
issued a notice on 1st November, 2014 to the respondent and invoked
the arbitration agreement recorded in the Development Agreement
and suggested three names of the retired Judges of this Court and
called upon the respondent to give consent to one of the name
suggested by the petitioner and threatened to take appropriate legal
steps if the respondent did not consent to one of the such name for
the appointment as a sole arbitrator.
4. The respondent through its advocate's reply dated 14 th
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November, 2014 refused to appoint any arbitrator. The petitioner thus
filed this petition under section 11(6) of the Arbitration Act on 3rd
December, 2014.
5. The arbitration petition is opposed by the respondent by
filing affidavit in reply dated 23rd January, 2015.
6. Mr.Kumbhakoni, learned senior counsel appearing for the
petitioner invited my attention to the Development Agreement entered
into between the parties, including the arbitration agreement recorded
therein and also the notice issued by the petitioner invoking the
arbitration agreement and the reply sent by the society to the said
letter invoking arbitration agreement. He submits that the respondent
has not disputed the existence of the arbitration agreement but has
refused to appoint an arbitrator on various grounds on the merits of
the claim proposed to be made by the petitioner. He submits that this
Court cannot adjudicate upon the merits of the claim proposed to be
made by the petitioner.
7. Mr.Mudholkar, learned counsel for the respondent on the
other hand submits that the Development Agreement dated 26th
September, 2014 relied upon by the petitioner is an unregistered
document and is not binding upon the respondent. He submits that
the sister concern of the petitioner i.e. M/s.Amisha Buildcon Private
Limited had also filed an application under section 9 of the Arbitration
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Act and has also filed a separate application under section 11(6) of
the Arbitration Act for the appointment of an arbitrator. He submits
that the respondent has already terminated all the agreements
between the said M/s.Amisha Buildcon Private Limited and also with
the petitioner herein. No arbitrator thus can be appointed by this
Court.
8. A perusal of the Development Agreement entered into
between the parties clearly indicates that the arbitration agreement is
recorded in clause 16 of the said Development Agreement. The
petitioner had issued a notice invoking the said arbitration agreement
on 1st November, 2014. The respondent had replied to the said notice
on 14th November, 2014 through its advocate, denying the requisition
made by the petitioner. A perusal of the said reply indicates that the
execution of the arbitration agreement is not disputed by the
respondent.
9. A perusal of the affidavit in reply filed by the respondent
also indicates that the respondent has not disputed the existence of
the arbitration agreement entered into between the parties and more
particularly in the said Development Agreement dated 26 th
September, 2014. It is however, contended by the respondent that
the said Development Agreement dated 26th September, 2014 is not
a registered document and thus cannot be relied upon or is not
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binding upon the respondent society. In my view, even if this
Development Agreement is not a registered document, the arbitration
agreement recorded therein can still be relied upon being a separate,
distinct and independent agreement. The validity of the agreement
can be decided by the learned arbitrator on its own merits.
10. Insofar as the submission of the learned counsel for the
respondent that the said Development Agreement is not binding upon
the society is concerned, the validity of the said agreement can be
decided by the learned arbitrator on its own merits. The said issue is
kept open.
11. In my view, since the arbitration agreement exists between
the parties and since the respondent has refused to agree on any
name suggested by the petitioner or has not suggested any other
name of the arbitrator, arbitration petition filed under section 11(6) of
the Arbitration Act filed by the petitioner is maintainable. This Court
has power to appoint an independent arbitrator under section 11(6) of
the Arbitration Act.
12. I propose to appoint Shri Justice Pramod D. Kode, former
Judge of this Court, having his office at 204, Vardhaman Chambers,
Cawasji Patel Street, Opposite Punjabi Moti Halvai, Fort, Mumbai -
400 001, Mob. No.99691 01100 and Office No.022 2204 0976 as a
sole arbitrator, who is required to file a statement of disclosure in
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terms of section 11(8) read with section 12(1) of the Arbitration Act
before the next date.
13. The parties are directed to convey this order to the learned
proposed arbitrator with a request to file statement of disclosure in
terms of section 11(8) read with section 12(1) of the Arbitration Act
before the next date.
14. Place the arbitration petition on board on 18th August, 2016
for directions.
15.
All parties as well as the learned proposed arbitrator to act
on the authenticated copy of this order.
(R.D. DHANUKA, J.)
