Gouri Sarkar vs Indian Oil Corporation Limited
2023 Latest Caselaw 309 Cal/2

OD 17


                             ORDER SHEET
                              AP/356/2020
                    IN THE HIGH COURT AT CALCUTTA
                  ORDINARY ORIGINAL CIVIL JURISDICTION
                             ORIGINAL SIDE



                              GOURI SARKAR
                                   VS
                     INDIAN OIL CORPORATION LIMITED




  BEFORE:
  The Hon'ble JUSTICE SHEKHAR B. SARAF
  Date: 3rd February, 2023.




                                                                       Appearance:
                                                      Mr. Swatarup Banerjee, Adv.
                                                          Mr. Chiranjib Sinha, Adv.
                                                                ...for the petitioner

                                                               Mr. S. Halder, Adv.
                                                              ...for the respondent

The Court: This is an application under Section 11 of the Arbitration and

Conciliation Act, 1996 wherein the petitioner relies on Clause 37(a) of the

Dealership Agreement dated 22nd day of July, 2009. The case of the petitioner is

that a show-cause was levied upon the petitioner under the Marketing

Disciplines Guidelines, 2018 that forms part of the main agreement and a fine

was imposed upon the petitioner. Section 9 application has been filed by the

petitioner wherein the said fine has been stayed. This action was taken by the

petitioner almost two years ago. An application for vacating the said order has

been filed by the respondent but the same is still pending before the Alipore

Court.

In light of the above, I am of the view that the disputes are arbitrable under

the arbitration clause. However, since the arbitration clause speaks of the

Director (Marketing) of the respondent as the sole Arbitrator or a person

appointed by him to be the sole Arbitrator, the said clause is not valid to that

extent in light of the judgments of the Supreme Court in Perkins Eastman

Architects v. HSCC (India) Limited reported in (2019) 9 SCC Online SC 1517 and in

TRF Limited v. Energo Engineering Projects Ltd. reported in (2017) 8 SCC 377.

Accordingly, Mr. Debarshi Das, Advocate (Mobile No.9007449637) is

appointed as an Arbitrator to resolve the disputes between the parties.

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.

The parties shall be at liberty to file an appropriate application before the

Arbitrator in accordance with law.

AP No. 356 of 2020 is, accordingly, disposed of.

(SHEKHAR B. SARAF, J.) B.Pal