Bombay High Court
Ramesh Ramchandra Kalyankar And ... vs Suresh K. Haware And Ors on 1 July, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO. 26 OF 2016
1. Ramesh Ramchandra Kalyankar, )
Age : 58 yrs., Occupation : Business, )
2. Rohini Ramesh Kalyankar, )
Age : 54 yrs., Occupation : Business )
3. Rachana Ramesh Kalyankar, )
Age : 31 yrs., Occupation : Business )
4. Rasik Ramesh Kalyankar, ig )
Age : 28 yrs., Occupation : Business )
All having address at 803, Cosmos, )
Sector 11, CBD Belapur, )
Navi Mumbai 400 614 ) ..... Petitioners
VERSUS
1. Suresh K. Haware, )
An adult, Occupation : Business, )
2. Sanjay K. Haware, )
An adult, Occupation : Business, )
3. Pravin K. Haware, )
An adult, Occupation : Business, )
All having address at 416, Vardhman )
Market, Sector 17, Vashi, )
Navi Mumbai 400 705 )
4. Haware Engineers & Builders Pvt.Ltd.)
A company incorporated under )
Companies Act, through its Directors )
the Respondent Nos. 1 to 3 above )
having its address at )
416, Vardhman Market, Sector 17, )
Vashi, Navi Mumbai 400 705. ) ..... Respondents
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ALONGWITH
ARBITRATION PETITION NO. 27 OF 2016
1. Ramesh Ramchandra Kalyankar, )
Age : 58 yrs., Occupation : Business, )
2. Rohini Ramesh Kalyankar, )
Age : 54 yrs., Occupation : Business )
All having address at 803, Cosmos, )
Sector 11, CBD Belapur, )
Navi Mumbai 400 614 ) ..... Petitioners
VERSUS
1. Suresh K. Haware, ig )
An adult, Occupation : Business, )
2. Sanjay K. Haware, )
An adult, Occupation : Business, )
3. Pravin K. Haware, )
An adult, Occupation : Business, )
All having address at 416, Vardhman )
Market, Sector 17, Vashi, )
Navi Mumbai 400 705 )
4. Haware Engineers & Builders Pvt.Ltd.)
A company incorporated under )
Companies Act, through its Directors )
the Respondent Nos. 1 to 3 above )
having its address at )
416, Vardhman Market, Sector 17, )
Vashi, Navi Mumbai 400 705. ) ..... Respondents
Mr.Rajiv Patil, Senior Advocate, i/b. Mr.Dushyant Purekar for the Petitioners.
Mr.Nishant Tripathi, i/b. M.Tripathi & Co. for Respondent nos. 1 to 4.
CORAM : R.D. DHANUKA, J.
DATE : 1st JULY, 2016
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JUDGMENT
By these two arbitration petitions filed under section 11(6) of the Arbitration
and Conciliation Act, 1996 the applicants in both these matters seeks appointment
of arbitrator in terms of clause 29 of the agreement entered into between the
parties.
2. Learned senior counsel appearing for the petitioners invited my attention to
the clause 29 of the agreement and also the correspondence entered into between
the parties. He submits that both the parties have suggested two different names.
The respondents however have not agreed to the name suggested by the
petitioners.
3. The arbitration petitions are opposed by the respondents on the ground that
since there was no consensus on the name of the learned arbitrator between the
parties, the said arbitration agreement referred in clause 29 of the contract has
automatically become inoperative and thus disputes and differences between the
parties shall be subject to the court situated at Karjat, Thane which alone has
jurisdiction to entertain and try the dispute between the parties.
4. Clause 29 of the agreement is extracted as under :-
29. All Disputes, claims, questions and difference
whatsoever between the parties hereto arising out of or in
connection with or incidental to or touching this Agreement or
the construction or application thereof or any clause or thing
herein contained or in respect of any account and duties,
responsibilities and obligations of either party hereunder or as
to any act or omission of any party or as to any other matter in
anyways relating to these presents or the rights duties and
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liabilities of either party under these presents shall as far as it
is possible be settled by mutual discussions failing which such
differences or disputes shall be referred to and settled by
Arbitration to be conducted in accordance with the Indian
Arbitration & Conciliation Act 1996 or any statutory
modification or re-enactment thereof for the time being in
force. In case if the parties hereto cannot come to a
unanimous decision regarding the sole Arbitrator then and in
that event this clause shall automatically become inoperative
and the dispute or differences shall be subject to the court
situated in Karjat/Thane who shall have the jurisdiction to try
and entertain the same.
5. A perusal of the correspondence annexed to the arbitration petition indicates
that both the parties have suggested two different names of the proposed
arbitrators. The parties however could not arrive at an unanimous decision
regarding the name of the sole arbitrator out of the names suggested by each other.
A perusal of clause 29 of the contract clearly indicates that if the parties cannot
arrive at the name of the sole arbitrator, arbitration agreement would become in-
operative and would cease to exist. It is further provided in the said clause that in
that event the disputes and differences shall be subject to the jurisdiction at the
Civil Court in Karjat/Thane.
6. In my view the arbitration agreement being conditional and since the
mandatory pre-conditions prescribed in the arbitration agreement not having been
satisfied, the arbitration agreement became inoperative and does not exist. Since
arbitration agreement does not exists, arbitration application under section 11(6) is
not maintainable. No arbitrator thus can be appointed in these arbitration petitions
filed under section 11(6) of the Arbitration and Conciliation Act, 1996.
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7. Both the arbitration petitions are accordingly dismissed. The parties are at
liberty to invoke the remedy available under the said clause. No order as to costs.
8. It is made clear that this court has not expressed any views on the merits of
the matter.
[R.D. DHANUKA, J.]
