Amit Biswas And Anr vs Kotak Securities Ltd
2021 Latest Caselaw 934 Bom

                                                                      26-CARBPL-932-2021.DOCX




                   Shephali



                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               ORDINARY ORIGINAL CIVIL JURISDICTION
                                      IN ITS COMMERCIAL DIVISION
                          COMM ARBITRATION PETITION (L) NO. 932 OF 2021


                        Amit Biswas & Anr                                        ...Petitioners
                              Versus
                        Kotak Securities Ltd                                    ...Respondent

Mr Devasis Mitra, with Sudipto Bose, i/b Rajdeep Lahiri, for the Petitioners.

Mr Rahul Karnik, for the Respondent.

                                               CORAM:         G.S. PATEL, J
                                                              (Through Video Conference)
                                               DATED:         14th January 2021
                        PC:-


                   1.         Heard through video conferencing.

2. This Petition has been served on the Respondents very late last Shephali Mormare evening. Mr Karnik has received a soft copy only this morning. He Digitally signed has not been able to take instructions. by Shephali Mormare Date: 2021.01.15 10:37:24 +0530

3. I simply cannot understand this delay by the Petitioners. The Petitioners filed a title Suit No. 54 of 2019 against this Respondent in the Civil Court in Alipore. They obtained an order on 14th February 2020. That matter finally went up to the Division Bench of the

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Calcutta High Court. There was an order of the Division Bench of 15th October 2020. The present Respondent was the Appellant before the Calcutta High Court and the present Petitioners were the two Respondents.

4. That order, a copy of which is from page 267 onwards, makes it clear that the impugned judgment of 14th February 2020 was set aside. This means that the parties have been in dispute since at least then, if not earlier, and that the Petitioners have always known the address of the Respondents.

5. The Division Bench dismissed the title suit, obviously on the ground that it could not survive in view of the existing arbitration agreement. The penultimate paragraph of that Calcutta High Court Division Bench says that there is an admitted arbitration agreement and the parties are referred to arbitration in accordance therewith.

6. The order then continued the injunction granted by the impugned order for a period of three months from that date and, in the meantime, left it open to the parties to apply to the Arbitral Tribunal for continuation, variation, modification or vacating of this injunction.

7. The present Petition under Section 9 was filed only as late as on 8th January 2021. The delay between 15th October 2020 and 8th January 2021 is wholly inexplicable. I am told that the Petitioners were waiting for the Respondents to file the Section 11 or invoke arbitration. That does not even stand to reason given the directions

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of the Division Bench of the Calcutta High Court, which, evidently on a Section 8 consideration, has already referred parties to arbitration.

8. The next argument is that the Petitioners were waiting for the Respondents to nominate an Arbitrator saying that this is the provision of the arbitration agreement, i.e. that the Respondents would unilaterally appoint an Arbitrator. That is not the status in law and no such unilateral appointment even had it been made would be considered valid.

9. Finally, and most importantly, the continuance of the injunction was for three months but the Division Bench said that it was open to the parties to apply to the Arbitral Tribunal to continue, vary, vacate or modify that injunction. This leaves no manner of doubt that there was a reference to arbitration by that order of the Calcutta High Court.

10. There also cannot be any question of the Petitioners not knowing the address of the Respondent. They have been in litigation since February 2020.

11. The result is that I have every reason to very seriously doubt the maintainability of this Petition under Section 9, particularly in view of the provisions of sub-section (3).

12. What is earnestly pressed before me is that that order of the Calcutta High Court must now be continued further by this High

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Court. Not only is there the question of delay, one that, as I noted, is entirely unexplained, but there is an additional question of whether the Court even has the power or authority to make any such order now that there is a reference to arbitration (and it makes no difference whether the reference is under Section 8 or under Section 11).

13. I am, therefore, making no ad-interim order today on the Petitioners' Section 9 Petition.

14. Mr Karnik seeks two weeks' time to take instructions.

15. List the matter on 29th January 2021 for hearing.

16. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.

(G. S. PATEL, J)

14th January 2021