M/S Awachat Transport ... vs The General Manager, Central ...
2017 Latest Caselaw 5667 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



Misc. Civil Application No. 326 of 2017

Applicant               :          M/s Awachat Transport Corporation, 

                                   through its Proprietor, Shri Bhaurao 

                                   Marotrao Awachat, aged about 61 years,

                                   Occ: Business, resident of c/o 91/A, 

                                   Kamgar Nagar, Near Ishwar Nagar, New 

                                   Nandanwan, Nagpur

                                   versus

Respondents             :          1)   The General Manager, For and on behalf

of President of India, Central Railway,

CSTM, Mumbai

2) The Divisional Railway Manager (Works),

For & on behalf of President of India,

Central Railway, Nagpur

Shri V. K. Paliwal, Advocate for applicant

Shri N. P. Lambat, Advocate for respondents

Coram : S. B. Shukre, J

Dated : 4th August 2017

Oral Judgment

1. Rule. Heard forthwith by consent of parties.

2. There is no dispute about the fact that some differences

between the applicant and the respondents have arisen over the

execution and working of contract between them. There is also no

dispute about the fact that the arbitration clause in the agreement exists.

However, the dispute is about applicability of Section 12 (5) of the

Arbitration and Conciliation Act, 1996 which imposes a disability upon

the employer to be appointed as an arbitrator. Shri V. K. Paliwal, learned

counsel for the applicant, on instructions, submits that the applicant is not

ready to waive the applicability of this provision while Shri Nitin Lambat,

learned counsel for the respondents submits that since the dispute

involves adjudication on technical point, it would be preferable that

somebody having expertise in railway matters is appointed as Arbitrator

and for that matter, one of the nominees of the respondents would be

the expert in such matters to be appointed as an arbitrator. But the fact

remains that the applicant is not willing to waive the applicability of

Section 12 (5) of the Act and, therefore, a person who is in the

employment of the Railways, could not be appointed as an arbitrator in

the present case. The respondents do not have any other private names to

suggest for being appointed as arbitrator or from the panel of this Court.

3. I am, therefore, of the view that this is a case where

arbitrator is required to be appointed for adjudication of the dispute

between parties and the choice for appointment of arbitrator is now

restricted to the panel of arbitrators constituted by this Court, from the

category of the retired Hon'ble Judge of this Court.

4. In view of the above, application is allowed and by consent,

Shri S. R. Dongaonkar, retired Judge of this Court is appointed as

Arbitrator to adjudicate upon the dispute between the parties. Parties to

appear before the learned Arbitrator on 28.8.2017 and shall be bound by

further instructions of the learned Arbitrator in the matter. Process fees

of Rs. 10,000/- shall be deposited by the applicant in this Court in one

month from the date of the order, failing which this application shall

stand dismissed and rule discharged without reference to this Court. It is

also made clear that deposit of the process fees in this Court within the

stipulated period of time, is a condition precedent for commencement of

arbitration proceedings. Fees of learned Arbitrator shall be settled as per

rules. Parties to bear their own costs.

S. B. SHUKRE, J

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