Bombay High Court
Dr. Ashish Rajkumar Bhiwapurkar vs M/S Himalaya Infra Projects, ... on 14 October, 2022
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
MISC. CIVIL APPLICATION (ARBN) NO. 434/2022
Dr. Ashish Rajkumar Bhiwapurkar
Vs.
M/s. Himalaya Infra Projects
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. R.M. Bhangde, Advocate for the Applicant.
Mr. Palash R. Chakole, Advocate for the Non-applicant.
CORAM : AVINASH G. GHAROTE, J.
DATED : 14th OCTOBER, 2022.
Heard Mr. R.M. Bhangde, learned for the applicant
and Mr. Palash Chakole, learned counsel for the non-
applicant.
2. There is no dispute regarding the execution of the
agreement for development dated 17.02.2015 between the
parties (page 9) and also the arbitration Clause 45 as
contained therein (page 29). The applicant, by the
communication dated 09.12.2021, has terminated the
agreement (page 40). In pursuance to such termination, the
non-applicant by the Communication dated 24.12.2021 (page
46) has refuted the allegations regarding termination and has
sought co-operation of the applicant for completion of the
transaction, which was accompanied by two cheques of
Rs.31,00,000/- and Rs.2,08,046/- (page 68), to which a
rejoinder was sent by the applicant on 14.02.2022,
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controverting the contents in the reply. Thereafter, the non-
applicant, claimed to have sent a demand draft of
Rs.20,00,000/-, which has been returned by the applicant by
the communication dated 05.03.2022 (page 75). Thereafter,
by the communication dated 22.04.2022, again a request is
made by the non-applicant for restoration of the agreement
(page 77). A caveat was also filed before the Civil Judge
(Senior Division), Nagpur by the non-applicant.
3. By the communication dated 25.04.2022, the
arbitration clause was invoked by the applicant (page 87),
which was replied to by the non-applicant by the
communication dated 20.05.2022 for the first time, seeking
negotiation by mutual consultation.
4. Since nothing was forthcoming, the present
application has been filed under Section 11(6) of the
Arbitration and Conciliation Act, 1996, for appointment of an
Arbitrator. Mr. Palash Chakole, learned counsel for the non-
applicant, submits that considering the language of the
arbitration clause, the process of appointing an Arbitrator, has
to be relegated to a backseat, till such time, any negotiation
for amicable resolution of the dispute is not over. He submits,
that this is the only course of action which needs to be
followed for which, he relied upon the definition of
negotiation as contained in Black's Law Dictionary and so also
the judgment of this Court in the case of Tulip Hotels Pvt. Ltd.
Vs. Trade Wings Ltd. reported in MANU/MH/1748/2008 para
7. Reliance is also placed on the judgment of this Court in the
case of Rajiv Vyas Vs. Johnwin Manavalan reported in
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LQ/BomHC/2010/2106 para 7 and also in the case of M/s
Sobha Limited Vs. M/s Nava Vishwa Shashi Vijaya, C.M.P. No.
24 of 2022 decided on 10.06.2022 by a learned Single Judge
of the Karnataka High Court paras 8, 15 and 16.
5. Mr. R.M. Bhangde, learned counsel for the
applicant, relies on the judgment of the Delhi High Court in
the case of Kunwar Narayan Vs. MS Ozone Overseas Pvt. Ltd.
and Another reported in 2021 SCC OnLine Del 1950 para 5.
6. In order to appreciate the controversy, the
arbitration Clause 45 is reproduced as under:
"45. If any dispute, controversy or claim arises
between the parties hereto in connection with this
Agreement or the interpretation of any of its
provisions (including its existence and validity) or
concerning anything contained in or arising out of
this Agreement, any party may notify the other
Party and each of the Parties shall make all
attempts to amicably resolve such difference,
dispute or question through mutual consultation
and negotiation. In the event of any controversy,
claim or dispute between the parties in respect to
this agreement, the proceedings of arbitration shall
be held in accordance with the provisions of Indian
Arbitration and Conciliation Act 1996 and the
decision of the Arbitrator shall be final."
7. A perusal of the aforesaid arbitration Clause,
indicates that in case of a dispute, the parties shall make an
attempt to amicably resolve such differences through mutual
consultation and negotiation. It further states that in the event
of dispute, controversy or claim, the same shall be subject to
the process of arbitration. In the instant matter, it is not in
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dispute that by the communication dated 09.12.2021, after
waiting for a period of nearly seven years, the agreement in
question was terminated by the applicant. The reply dated
24.12.2021 does not seek any amicable settlement as is
indicated from a perusal of the same. This is also reflected
from the subsequent reply of the non-applicant dated
20.05.2022. This would clearly indicate that the differences
between the parties, had become irreconcilable as neither of
them was agreeable to any amicable settlement by
negotiation. It is only when by the communication dated
25.04.2022 that the arbitration clause was invoked, that a
plea of negotiation, has been raised for the first time in reply
thereto. It is thus apparent, that the plea, has been raised, at
this juncture, only for the purpose of raising a plea as a
formality and nothing else. It is thus apparent that relegation
of the parties to an amicable settlement at this point of time,
considering the allegations and counter allegations made in
their respective communications, would be merely an empty
formality and nothing else.
8. In Kunwar Narayan (supra), such a position has
been considered and the position therein is not different from
what is there in the present matter as in this case also the
arbitration clause does not envisage any formal regimen or
protocol for amicable resolution, such as issuance of a notice
in that regard and any actions to be taken by the parties
thereto in pursuance thereof in absence of which, I am of the
considered opinion that nothing worthwhile will be achieved
by relegating the parties to explore any avenue of amicable
resolution and the appointment of an Arbitrator. In case the
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Arbitrator is appointed, that can never be a bar for settlement,
if the parties so desire. The very fact that inspite of the
communication dated 20.05.2022, there is nothing further
done to indicate the willingness of the non-applicant to take
the course of action as is indicated in the said communication
would substantiate the above position.
9. In Tulip Hotels Pvt. Ltd. (supra) as well as Rajiv
Vyas (supra), there was a specific clause, whereby the parties
were enjoined to conciliation, which is not the position in the
present matter. In M/s Sobha Limited (supra), also the clause
mandatorily required conciliation as is spelt out from a perusal
of para 8 therein, considering which, these are of no assistance
to the learned counsel for the non-applicant.
10. Since the dispute is reflected and the arbitration
clause has been invoked by the applicant and the reply dated
20.05.2022 also suggests the name of the Arbitrator as
indicated in para C therein, and parties are not willing for a
name it would be appropriate if the parties are referred to
arbitration, considering which, the application is allowed.
11. Mr. R.K. Deshpande, retired Judge of this Court, is
hereby appointed as an Arbitrator to arbitrate the dispute
between the parties.
12. The parties shall appear before the learned
Arbitrator on 22.10.2022.
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13. The processing charges be deposited before that
time.
(AVINASH G. GHAROTE, J.)
Vijay
Digitally Signed By:VIJAY KUMAR
Personal Assistant
to Hon'ble JUDGE
Signing Date:17.10.2022 11:17
