Calcutta High Court
Enviro Systems & Equipment ... vs Nikhil Mondal @ Nikhil Chandra ... on 11 March, 2022
ORDER OD-2
AP/531/2021
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ENVIRO SYSTEMS & EQUIPMENT INCORPORATE
VERSUS
NIKHIL MONDAL @ NIKHIL CHANDRA MONDAL & ANR.
BEFORE:
THE HON'BLE CHIEF JUSTICE PRAKASH SHRIVASTVA
DATE : 11TH MARCH, 2022
APPEARANCE:
Mr. Souvik Sen, Advocate
Mr. Shaunak Ghosh, Advocate
Ms. Aditi Dutta, Advocate
......for the petitioner
The Court:- The fresh affidavit of service filed by the applicant is
taken on record. The respondent is duly served in the matter.
This application has been filed under Section 11 of the Arbitration
and Conciliation Act, 1996 for appointment of the arbitrator.
Learned counsel for the applicant has pointed out that the
development agreement dated 22nd March, 2016 was executed between the
parties which contains the following arbitration clause:
"T. In case a dispute arises between the parties hereto regarding
any transaction made in terms of this Agreement, or as to
interpretation, operation or enforcement of any term of this
agreement the dispute shall be referred for adjudication to an
arbitrator to be appointed mutually and jointly by the parties,
whose decision shall be final and binding on the parties and
their legal representatives. If the parties fail to appoint a single
arbitrator, each party will appoint an arbitrator and the two
arbitrators will adjudicate the dispute. If the two arbitrators fail
to concur, they will appoint an umpire and the decision of such
umpire shall be final and binding upon the parties."
He has also pointed out that in terms of the above arbitration clause,
initially the notice dated 2nd November, 2020 was sent by the applicant proposing
the name of the sole arbitrator, but the respondents vide their reply dated 10th
November, 2020, had denied the appointment of the sole arbitrator. The
applicant, therefore, had sent notice dated 15th January, 2021 nominating Mr.
Durga Prasad Dutta, Advocate, as one of the arbitrators and requesting the
respondents to appoint the second arbitrator. The respondents vide
communication dated 27th January, 2021 had nominated Mr. Chandan Banerjee
as the second arbitrator but thereafter the dispute arose between the two
arbitrators in respect of the venue for conducting the arbitration proceedings,
hence for last one year the matter has not been proceeded with. He has
submitted that in terms of Section 10 of the Act, appointment of even number of
arbitrators cannot be sustained and that in terms of Section 11(4)(b) of the Act,
when two appointed arbitrators fail to agree on the third arbitrator for
appointment, then it is the Court's jurisdiction to appoint the third arbitrator. In
this regard, he has placed reliance upon the judgement of the Supreme Court in
the matter of ONGC Petro Additions Limited vs. Daelim Industrial Company Ltd.
(AIR 2015 SC 2861) and the judgment of Bombay High Court in the matter of
Haresh Chinnubhai Shah vs. Rajesh Prabhakar Jhaveri (2004(1) MH L.J. 1109). In
the aforesaid background, the prayer is made for appointment of third arbitrator
so that the arbitral proceeding in terms of the arbitration clause may continue.
No one has appeared for the respondents. Therefore, arbitration
agreement and the submission made by counsel for the applicant have
remained uncontested. In view of the above-uncontested position, I am of the
opinion that the prayer of the applicant for appointment of third arbitrator
deserves to be allowed. Accordingly, Mr. Soumya Dasgupta, Advocate M:
9830576448 of this Court is appointed an arbitrator. The appointment is
subject to submission of declaration by the Arbitrator in terms of Section 12(1)
in the form prescribed in the Sixth Schedule of the Act before the Registrar,
Original Side of this Court within four weeks from today.
Let this order be conveyed to the Arbitrator by the Registrar, Original
Side forthwith.
AP is disposed of.
(PRAKASH SHRIVASTAVA, C.J.)
sm/akg
