Bombay High Court
Neev Infrastructure Private ... vs Kalyan Dombivali Municipal ... on 21 September, 2022
Bench: C.V. Bhadang
28-arp-117-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO.117 OF 2022
Neev Infrastructure Pvt. Ltd. ...Petitioner
Vs.
Kalyan Dombivali Municipal Corporation ...Respondent
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Digitally signed Ms.Shweta R. Rathod i/b Elixir Legal Services for the Petitioner.
by NILAM
NILAM
SANTOSH
SANTOSH
KAMBLE
Mr.Prashant Kamble i/b Mr.A.S. Rao for the Respondent.
KAMBLE Date:
2022.09.21
16:22:31 +0530
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CORAM : C.V. BHADANG, J.
DATE : 21 SEPTEMBER 2022
P.C.
. This is an application for appointment of an
Arbitrator under Section 11(6) of the Arbitration and
Conciliation Act, 1996.
2. There was a works contract allotted to the Petitioner
by the Respondent - Corporation in respect of which a work
order was issued on 17 June 2008. As per the terms of the
contract, the work was to be completed within a period of 18
months. According to the Petitioner, there was a delay in
execution of the work on account of the fact that Respondent -
Corporation had failed to deliver possession of the land on which
the proposed construction was to come up.
N.S. Kamble page 1 of 5
28-arp-117-2022.doc
3. The Petitioner raised certain bills in respect of which
work had already done. As disputes and differences arose
between the parties regarding execution of the contract, the
Petitioner sent a notice to the Corporation on 31 January 2020
interalia seeking reference of the dispute to the Arbitrator as there
is an arbitration clause contained in Clause No.28 of the tender
document. The learned counsel for the Petitioner submitted that
the Corporation has failed to comply with the requisition and
even to issue a reply. It is in these circumstances that the
Petitioner has approached this Court for appointment of an
Arbitrator.
4. I have heard the learned counsel for the parties.
Perused record.
5. The learned counsel for the Respondent -
Corporation has raised two contentions. First is that, the
arbitration agreement is contained in a separate document
namely the tender document and the agreement is insufficiently
stamped. Secondly, it is submitted that the dispute is stale and a
deadwood as the contract has ended in 2011-2012 and no action
has been taken till the year 2020.
6. The learned counsel for the Petitioner by placing
reliance on the decision of the Supreme Court in Intercontinental
N.S. Kamble page 2 of 5
28-arp-117-2022.doc
Hotels Group (India) Private Limited and Anr. Vs. Waterline
Hotels Private Limited 1 has submitted that it is for the Arbitrator
to go into the validity of the document on the ground whether it
is sufficiently or insufficiently stamped. It is pointed out that this
is not a case where the document is completely unstamped. It is
submitted that repeated correspondence was entered into with
the Corporation and on account of delay in handing over site, the
work was delayed.
7. I have considered the rival submissions.
8. In so far as the objection raised on the basis of
insufficient stamping is concerned, the Hon'ble Supreme Court
in Intercontinental Hotels Group (supra) has held thus in para 30
of the judgment.
30. It may be noted that the petitioners have
themselves attempted to self-adjudicate the required
stamp duty and have paid, on 29-7-2019, a stamp
duty of Rs.2,200/- describing the HMA as a "bond".
On 10-6-2020, the petitioners further purchased 11
e-stamps for Rs.200/- each, describing the HMA as
an "agreement" under Article 5(j). Therefore, it falls
upon the Court, under the Stamp Act to review the
nature of the agreement in order to ascertain the
stamp duty payable. From the above it is clear, that
stamp duty has been paid, whether it be insufficient
or appropriate is a question that may be answered at
a later stage as this Court cannot review or go into
this aspect under Section 11(6). If it was a question
1(2022) 7 SCC 662
N.S. Kamble page 3 of 5
28-arp-117-2022.doc
of complete non-stamping, then this Court, might
have had an occasion to examine the concern raised
in N. N. Global Case, however, this case, is not one
such scenario.
It can thus be seen that it is only where the document
is completely unstamped that the Supreme Court has found that
the matter can be examined in the light of the decision in N. N.
Global Mercantile (P) Ltd. Vs. Indo Unique Flame Ltd. 2 Else
otherwise the question has left to be decided by the Arbitrator.
9. Even so far as the issue whether the claim is stale or
deadwood, parties had entered various correspondence. The
notice did not invoke any favourable response from the
Corporation nor any reply was issued. There is a communication
dated 25 February 2020 from the Corporation stating that the
matter is under consideration of the Commissioner. The
contention therefore cannot be accepted at this stage.
10. In such circumstances, the following order is passed.
ORDER
1. Hon'ble Smt. Justice Vasanti A. Naik,
Former Judge of this Court is appointed as a Sole
Arbitrator to adjudicate the dispute between the
parties.
2(2021) 4 SCC 379
N.S. Kamble page 4 of 5
28-arp-117-2022.doc
2. The learned Sole Arbitrator, before entering
the arbitration reference, shall forward a statement
of disclosure as per requirement of Section 11(8)
read with Section 12(1) of the Arbitration and
Conciliation Act, 1996, to the Registrar ( Judicial-I)
of this Court.
3. At the first instance, the parties shall appear
before the prospective Arbitrator within a period of
three weeks from today on a date which may be
mutually fixed by the learned Sole Arbitrator.
4. The fees payable to the Arbitral Tribunal
shall be as prescribed under the Bombay High
Court (Fees payable to Arbitrators) Rules, 2018 and
shall be borne by the parties in equal proportion.
5. All contentions of the parties including on
merits of the matter are expressly kept open.
6. The petition is disposed of in the above
terms, with no order as to costs.
7. Office to forward a copy of this order to the
learned Arbitrator on the following address:
"Smt. Justice Vasanti A. Naik
Plot No.5, Samarth Nagar (W),
Wardha Road, Nagpur - 440 015.
Mobile No.9049399387 / 9867298758"
C.V. BHADANG, J.
N.S. Kamble page 5 of 5
