Kishore Kantilal Maniar vs Vilayatram Mittal And Anr
2022 Latest Caselaw 555 Bom

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                           ORDINARY ORIGINAL CIVIL JURISDICTION

                            COMMERCIAL ARBITRATION APPLICATION NO. 371 OF 2019



                   Kishore Kantilal Maniar                              ...     Applicant
                             vs.
                   Vilayatram Mittal and Anr.                           ...    Respondents


                   Mr. Sanjeev Singh for the Applicant.
                   Mr. Chaitanya Bhandarkar for Respondents.


                                                             CORAM : A. K. MENON, J.

DATED : 17th JANUARY, 2022 [ THROUGH VIDEO CONFERENCE ] P.C. :

1. Mr. Singh on behalf of the applicant submits that a Sole Arbitrator

appointed by this court vide order dated 12 th August, 2010 under section 11

of the Arbitration and Conciliation Act in Arbitration Application no. 226 of

2007 has expired. The Arbitrator entered the reference and after completing

pleadings the tribunal commenced recording of evidence. In paragraph 16

of the present application the applicant has set out various dates when

pleadings were completed and evidence was led. It is stated that the cross

examination of the second witness could not be completed and the witness

was then discharged. In the meanwhile the learned arbitrator expired in RAJESHWARI RAMESH 2016.

PILLAI

Digitally signed
by RAJESHWARI
RAMESH PILLAI
Date: 2022.01.20                                                                             1/4
17:06:49 +0530
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2. According to Mr. Singh the arbitrator expired in or around

July/August, 2016 which caused the applicant to address a letter dated 15 th

September, 2016 to the respondent calling upon respondent to consent and

appoint an arbitrator. In response to this request, the respondent vide its

letter dated 21st September, 2016 addressed to the applicants Advocate,

suggested an alternate name. In case the applicant did not accept the

nominee sought to be made by the respondent and if the applicant insisted on

appointing its nominee, a former Judge of this court, then the respondent

would nominate a second arbitrator and the tribunal could consist of three

arbitrators.

3. On behalf of the respondent Mr. Bhandarkar has opposed this

application on the ground that it is barred by limitation. He relies upon

judgment of this Court in Deepdharshan Builders Pvt. Ltd. vs. Saroj, Widow

of Satish Sunderrao Trasikar 1 which holds that the period of limitation under

Article 137 would apply and that period of three years would have to be

computed from the date when the response of the respondent to the nominee

by the applicant was delivered / served upon the applicants / their Advocates.

Mr. Bhandarkar admits that notice of 15 th September, 2016 suggesting a

substitute arbitrator was received and that was responded to on 21 st

September, 2016 suggesting an alternative and also separately suggesting

that the tribunal be reconstituted with tribunal of three arbitrators but there

1 (2019) 1 AIR Bom R 249

27-CARAP-371-2019.odt rrpillai is nothing on record to show when the letter dated 21 September, 2016 was

delivered to the applicants Advocate.

4. It also appears that further correspondence has ensued as evident from

copy of letter dated 11th December, 2018 addressed by the respondent firm to

the Applicants Advocate wherein reference is made to correspondence

between the parties inter alia contending that a suit was pending in this court

since the year 2007 and that the applicant had no right to invoke arbitration.

The attempt therefore was to avoid the arbitration proceedings. What really

clinches the issue is the fact that the respondent has in no uncertain terms

suggested appointment of a nominee and in the alternative suggested that

reference be made to a three member tribunal. Thus a new agreement was

proposed by the respondent's letter of 15 th September, 2016 but the

agreement between the parties and as contained in clause 7 contemplated

reference to a Sole Arbitrator. In these circumstances I am of the view that

the opposition to the application is not justified. Firstly for the reason that Mr.

Bhandarkar is unable to satisfy the court of the date his clients response dated

15th September, 2016 was delivered to the applicants/their Advocate. The

present application though dated 23 rd September, 2019 was lodged only on

9th October, 2019 but since there is no evidence of the date on which the

respondents letter of 15th September, 2016 was delivered to the applicants

Advocate and/or applicant on record, it appears that the date of

commencement of limitation under Article 137 cannot be ascertained

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5. On facts I find that an arbitrator was appointed in Arbitration

Application no. 226 of 2007 after hearing the respondent. At that stage there

was no objection on the ground that there was any suit pending in this court

or elsewhere. I am of the view for the aforesaid reason that the present

application is certainly not barred by limitation as sought to be contended by

Mr. Bhandarkar. In view thereof I pass the following order :

(i) Mr. Anoshak Daver, Advocate is appointed as Sole Arbitrator to

adjudicate upon claims and counter claims, if any.

(ii) The learned Arbitrator is requested to file his disclosure statement

under section 11(8) and Section 12(1) within three weeks with the

Prothonotary and Senior Master and provide copies to the parties.

(iii) Parties to appear before the Sole Arbitrator on a date to be fixed by him

at his earliest convenience.

(iv) Fees payable to the Sole Arbitrator will be in accordance with the

Bombay High Court (Fee Payable to the Arbitrators ) Rules, 2018.

(v) Application is disposed in the above terms.

(vi) In view of the disposal of the application, interim application is also

disposed.

(A. K. MENON, J.)

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