Bombay High Court
Manoj S/O Shripal Thakur vs Union Of India Thr. General ... on 2 May, 2016
Bench: Z.A. Haq
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.
Judgment 2 mca697.15.odt
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
246.
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.
Judgment 4 mca697.15.odt
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.
iv) The amount of deposit shall continue with the Registry of this
court till termination of the arbitration proceedings.
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..
