Bombay High Court
Sailendra Kumar Behra, S/O. Mr. ... vs Rabindra Kumar Behera, S/O Mr. ... on 14 July, 2021
Bench: G.S. Patel
14-ARP-63-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO. 63 OF 2021
Sailendra Kumar Behera & Anr ...Petitioners
Versus
Rabindra Kumar Behera & Ors ...Respondents
Mr Jehangir Jejeebhoy, with Ashir Amin and Samridhi Lodha, i/b
Kanga & Co, the Petitioners.
Mr Nikhil Karnawat, i/b Pratik Amin, for Respondents Nos. 1 and 2.
Dr Birendra Saraf, Senior Advocate, with Dipti Das, Sunil A Vyas,
Shruti Dasondi, i/b Fox Mandal & Associates, for Respondent
No.3.
CORAM: G.S. PATEL, J
(Through Video Conferencing)
DATED: 14th July 2021
PC:-
1. Heard through video conferencing.
2. Between the two Petitioners and Respondents Nos. 1 and 2,
there was a Family Settlement Agreement dated 8th April 2018.
Disputes arose. Those parties are in arbitration before a sole
Arbitrator, Hon'ble Mrs Justice Rekha Sondur-Baldota, former
Judge of this Court.
14th July 2021
14-ARP-63-2021.DOC
3. The Family Settlement Agreement also had an associated
Escrow Agreement dated 8th May 2018. This was between the
parties to the Family Settlement Agreement and the 3rd
Respondent, Pradeep Kumar Naredi, the escrow agent.
4. The present Petition seeks an order under Section 11 of the
Arbitration and Conciliation Act, 1996 for a reference, preferably to
the sole arbitration of Mrs Justice Rekha Sondur-Baldota, she
already being ceased of the principal dispute, of disputes under the
Escrow Agreement dated 8th May 2018. Clause 10.2 has the
provision for dispute resolution. Clause 10.2.3 specifically requires
the escrow agent to be made a party to the arbitral proceedings, but
Clause 10.2.4 says that he is not to incur costs in arbitration. Should
he be required to appoint any legal adviser to represent him before
the arbitral tribunal, the family members are to make available to
him the required liquidity and funds within five days of the escrow
agent submitting a requisition.
5. Mr Jejeebhoy for the Petitioners attempts a faint-hearted
protest when Dr Saraf for the 3rd Respondent says this should be
read to include any costs of the Section 11 Petition too. Realizing
that persisting in this opposition will entail replies, rejoinders (and
possibly more) and a judgment on merits, Mr Jejeebhoy wisely
withdraws his objection.
6. There is already a demand made by the 3rd Respondent for
advances. Mr Jejeebhoy has instructions to state that demand will be
met by the Petitioners in the first instance, subject to their right of
the recovery in arbitration from Respondents Nos. 1 and 2.
14th July 2021
14-ARP-63-2021.DOC
Similarly, the Petitioners will initially pay to the 3rd Respondent the
costs of the Section 11 Petition, subject to their right to recover the
whole or any part of it from Respondents Nos. 1 and 2 in arbitration.
Accordingly, I accept the suggestion of the parties that the disputes
under the Escrow Agreement dated 8th May 2018 also be referred to
the sole arbitration of Hon'ble Mrs Justice Rekha Sondur-Baldota.
The clause will operate in this manner in all future proceedings, i.e.,
reserving to the Petitioners the liberty to recover jointly and
severally from Respondents Nos. 1 and 2 the whole or any part of
the amount the Petitioner may have initially provided to the 3rd
Respondent to meet his legal expenses.
7. I clarify that I have not appointed Hon'ble Mrs Justice Rekha
Sondur-Baldota as an Arbitrator under this order but only accepted
the parties' agreement on her nomination as such.
8. Necessarily, this means that the various terms and conditions
including as to arbitral fees, will be in the discretion of learned sole
Arbitrator. For good order, the learned sole Arbitrator is requested
to file her statement of disclosure in accordance with the
requirements of the statute.
9. The Arbitration Petition is disposed of in these terms.
10. All concerned will act on production of an ordinary copy of
this order.
(G. S. PATEL, J)
14th July 2021
