Bombay High Court
Shri. Vijay S/O. Dwarkadasji ... vs Shri. Omprakash S/O. Ramniwas ... on 6 May, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION NO.91 OF 2016
Shri Vijay s/o Dwarkadasji Verma,
Aged about 48 years,
Occupation - Business, and
Resident of Main Road, Malkapur,
District - Buldhana. ig .... APPLICANT
VERSUS
1) Shri Omprakash s/o Ramniwas Verma,
Aged about 50 years,
Occupation - Business,
Resident of Shraddha Alankar,
Sahadev Complex, Main Road,
Malkapur, District - Buldhana.
2) Shri Govardhan s/o Ramniwas Verma,
Aged about 56 years,
Occupation - Business,
Resident of Trimurti Apartment,
Jatharpeth, Akola, District - Akola.
3) Shri Ashok Mangilal Soni,
Aged about 50 years,
Occupation - Business,
Resident of Near Hatekeshwar Temple,
Khadakpurna, Khandawa, Tahsil and
District Khandawa (Madhya Pradesh) .... NON-APPLICANTS
______________________________________________________________
Shri N.S. Bhattad, Advocate for the applicant,
Shri R.M. Bhangde, Advocate for the non-applicants.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATED : 6
MAY, 2016
th
ORAL JUDGMENT :
1. Heard Shri N.S. Bhattad, Advocate for the applicant and
Shri R.M. Bhangde, Advocate for the non-applicants.
2.
Rule. Rule made returnable forthwith.
3. The applicant has filed this application under Section 11
of the Arbitration and Conciliation Act, 1996 praying that an arbitrator
be appointed to resolve the dispute.
4. The application is opposed by the non-applicants on the
ground that in fact there is no dispute and the liabilities and
entitlement of the parties were worked out long before.
5. With the assistance of the learned Advocates for the
respective parties, I have examined the documents filed on the record.
It is admitted that if there is a dispute between the parties in respect of
the partnership business, it is required to be resolved by an arbitrator.
It is undisputed that the applicant had filed Regular Civil Suit
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No.152/2008 before the Civil Court, Malkapur, in which the non-
applicants filed an application under Section 8 of the Arbitration and
Conciliation Act, 1996, which was allowed by the order dated 30-10-
2010 and the civil Court concluded that the dispute between the
parties is required to be resolved by an arbitrator. The order passed by
the civil Court was challenged before this Court in Writ Petition
No.944/2011 which was dismissed on 14-12-2011. The further
challenge by the applicant in Letters Patent Appeal is dismissed.
6. The non-applicants had issued the communication dated
27-11-2010 through their advocate to the applicant proposing that Shri
Ashok Ramniwasji Verma, Chartered Accountant will be arbitrator on
their behalf. The applicant had not taken any steps in the matter and
prosecuted the Writ Petition and then Letters Patent Appeal. After
disposal of the Letters Patent Appeal, the applicant sent the
communication dated 23-11-2012 proposing the name of Shri Sanjay
B. Solat, Advocate as the arbitrator. The inter-se communications
continued till 27-04-2015 and they show that the arbitrators appointed
by the parties could not agree on appointment of an Umpire. In these
circumstances, the applicant has approached this Court.
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7. Considering the above facts, I find that the dispute
between the parties will have to be resolved by the learned Arbitrator.
The claim made by the applicant cannot be said to be a stale claim.
This Court has jurisdiction to entertain and decide the application. In
view of the facts on record, the jurisdiction under Section 11(6) of the
Arbitration and Conciliation Act, 1996 is required to be exercised.
8. Hence, the following order :
i) Shri M.N. Gilani, Former Judge of this Court is appointed
as Arbitrator to resolve the dispute.
ii) The applicant and the non-applicants shall pay the fees of
the learned Arbitrator directly.
iii) The applicant shall deposit Rs.50,000/- and the non-
applicants together shall deposit Rs.50,000/- with the
Registry of this Court within six weeks towards security for
the fees of the learned Arbitrator.
This amount shall be kept with the registry of this Court
till the arbitration culminates.
iv) In addition, the applicant shall deposit Rs.10,000/- with
the Registry of this Court within six weeks towards
processing charges.
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v) The learned Advocate for the applicant has submitted that
according to the deed of partnership, the applicant is
having 20% of share and therefore, the liability of the
expenditure of the arbitration proceedings should be
determined accordingly. In my view, it would not be
appropriate for this Court to consider this issue and it is
left to the learned Arbitrator to consider this issue, if
raised by the parties.
vi) Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
pma
