Bombay High Court
M/S Shree Mahavir Servo Petro ... vs Indian Oil Corp. Thr. Chief ... on 24 November, 2017
Bench: S.B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Misc. Civil Application No. 570 of 2017
Applicant : M/s Shree Mahavir Servo Petro Point, through
its Proprietor, Shri Bindeshwariprasad Gupta,
aged major, Occ: Business, resident of Shri Ganesh
Bhawan, Gurudwara Road, D.G. Tukum,
Chandrapur
Versus
Respondents: 1) Indian Oil Corporation, through its
Chief Divisional Retail Sales Manager, I.O.C.L.
Nagpur Divisional Office, Akarshan Busiplex,
26, Central Bazar Road, Ramdaspeth, Nagpur
2) The Executive Director, Maharashtra State
Office, Indian Oil Bhawan, Plot No. 33, Gun
Black, Bandra Curla Complex, Bandra East,
Mumbai-400051
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Shri A. R. Wagh, Advocate for applicant
Shri Rohit Joshi, Advocate for respondents
Coram : S. B. Shukre, J
Dated : 24th November 2017
Oral Judgment
1. Rule. Heard forthwith by consent of parties.
2. By the present application, appointment of Arbitrator has
been sought for resolution of two distinct disputes arising from two
agreements, one relating to appointment of applicant as dealer of
respondent no. 1 and the other relating to grant of lease by the applicant
to respondent no. 1. These agreements dated 1 st April 2004 and 26th
December 2003 respectively contain an arbitration clause. These
agreements show that Director (Marketing) of the respondent Corporation
and its Managing Director are to be appointed as respective Arbitrators to
arbitrate upon the disputes arising from the dealership agreement and
lease agreement. None of these authorities can be appointed as arbitrator
in view of the provisions of Section 12 (5) of the Arbitration and
Conciliation Act, 1996 and, therefore, now this Court is required to
exercise its jurisdiction under Section 11 of the Act.
3. For resolution of dispute arising from the dealership
agreement, both the parties are in agreement upon the name of Shri
Moreshwar Deorao Kadukar, retired additional District & Sessions Judge
to be appointed as Arbitrator. This has also been indicated by the
respondent Corporation in its letter dated 13.9.2016 (Annexure-H).
4. Shri Moreshwar Deorao Kadukar, retired Additional District &
Sessions Judge is appointed as Arbitrator to arbitrate upon the dispute
between the parties arising out of dealership agreement subject to the
condition that process fee of Rs. 15000/- shall be deposited in this Court
by the applicant within three weeks from the date of this order. If such
deposit is not made, this order appointing the arbitrator shall stand
cancelled without reference to the Court and if the deposit is made within
the stipulated period, the order of arbitration shall be communicated to
Shri Kadukar who shall then act in the matter by following the provisions
of Section 12 of the Arbitration and Conciliation Act, 1996.
5. As regards the prayer for appointment of arbitrator in the
matter of dispute relating to lease agreement, I am of the view that this
issue being squarely covered by the Full Bench decision of this Court in
Central Warehousing Corporation v. Fortpoint Automotive Pvt. Ltd.
reported in 2010 (1) Mh. L. J. 658, jurisdiction of the Small Cause Court
which is available at Chandrapur, is not ousted and the applicant is free to
take recourse to appropriate proceedings before the Small Cause Court or
a Civil Court invested with the powers under the Provincial Small Cause
Courts Act at Chandrapur within whose territorial jurisdiction the
property is situated.
6. In the result, application is partly allowed as indicated in
paragraphs 4 and 5 above. Rule is made absolute accordingly with no
order as to costs.
S. B. SHUKRE, J
joshi
