Prashant Singhai vs Smt. Tara Bai
2021 Latest Caselaw 8246 MP

     HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
                                    JABALPUR



ARBITRATION            CASE                       107/2019
NO.
Parties Name                   PRASHAT SINGHAI
                               AND ANOTHER

                                            VS.

                               SMT. TARA BAI
                               AND ANOTHER
Bench Constituted              SINGLE BENCH
Judgment delivered By          HON'BLE JUSTICE SHRI VISHAL DHAGAT, J
Whether     approved     for
reporting
Name of counsel for parties For applicants: Shri Girish Kumar Shrivastava. Advocate.

                               For non-applicants : Shri Avinash Zargar, Advocate.




                                  (O R D E R )
                                  04/12/2021

1.

Applicant has filed this application under Section 11(6)

of Arbitration and Conciliation Act, 1996 (hereinafter

referred to as 'Arbitration Act, 1996) for referring the

dispute to Arbitrator.

2. Learned counsel for applicants submitted that an

arbitration agreement was entered between applicants and

non-applicants on 13.5.2014. Said agreement has

arbitration clause 26. As per said clause, parties to the

agreement will comply with the agreement of Joint Venture

and if there is any dispute between the parties, then both

parties will appoint one Arbitrator each who will take

decision on dispute and decision will be binding on the

parties. It is submitted that since there is existence of an

arbitration agreement between the parties, therefore,

parties may be referred to Arbitrator for settlement of their

dispute.

3. Learned counsel for non-applicants opposed the

prayer for referring the dispute to Arbitrator. It is submitted

by him that parties does not have any intention to get the

dispute resolved by an Arbitrator. Arbitration clause is

vague and, therefore, same cannot be relied upon for

referring the dispute to Arbitrator. Learned counsel for non-

applicants placed reliance on judgment reported in (2014)

11 SCC 148, Karnataka Power Transmission

Corporation Limited and Another vs. Deepak Cables

(India) Limited; (2012) 2 SCC 144, Bharat Rasiklal

Ashra vs. Gautam Rasiklal Ashra and another;

(2015) 13 SCC 436, System for International

Agencies vs. Rahul Coach Builders Private Limited;

and (2007) 5 SCC 719, Jagdish Chander vs. Ramesh

Chander and Others.

4. Relying on said judgment learned counsel for non-

applicants argued that language employed in Clause does

not spell out intention of the parties to get the dispute

adjudicated through Arbitrator. It is submitted that in the

case of Jagdish Chander (supra) it has been held that

dispute shall be referred for Arbitration if parties

determine. It means that there was no arbitration

agreement between the parties but there was a provision

which enables arbitration only if parties mutually decides.

As there was no arbitration agreement, therefore, parties

cannot be referred to arbitration.

5. Heard learned counsel for the parties.

6. Clause 26 of the agreement stipulates that if there is

any dispute, then such dispute shall be resolved by

Arbitration Tribunal consisting of two Arbitrator and each

party will appoint one Arbitrator. From Clause 26, parties to

agreement had clearly expressed their intention for

resolving their disputes by arbitration.

7. Notice was given by the applicants to non-applicants on

11.9.2019 to appoint Arbitrator for resolving the dispute

between the parties. Non-applicants replied to said notice

and submitted that since Joint Venture Agreement has not

been followed by both the parties, therefore, same has

come to an end and Arbitrator cannot be appointed.

Applicants have issued another notice on 30.9.2019 and

had appointed Arbitrator Amresh Kumar Sahrivastava and

had made a request to non-applicants to also appoint an

Arbitrator so that dispute can be resolved. Reply to said

notice was given.

8. It is established law that even if agreement is

cancelled/terminated, then also arbitration Clause will

remain operative and Arbitrator can be appointed. Non-

applicants had refused to appoint an Arbitrator on the

ground that Joint Venture Agreement has not been

complied with by both the parties. It cannot be a ground

for not enforcing arbitration clause in the agreement.

9. Considering the same, application for appointment of

Arbitrator is allowed.

10. I appoint Ms. Sushma Khosla, (Retd. District &

Sessions Judge), as the sole Arbitrator, subject to the

declarations being made under Section 12 of the 1996 Act

(as amended) with respect to the independence and

impartiality of the arbitrator, and the ability to devote

sufficient time to complete the arbitration within the period

specified by Section 29-A of the 1996 Act.

11. The arbitration agreement states that the arbitration

will be at Bhopal, Madhya Pradesh. Consequently, the seat

of arbitration is at Bhopal, subject to any modification that

may be made by consent of the parties. The arbitrator is,

however, at liberty to conduct the proceedings at a

convenient venue as per the convenience of the arbitrator

and the parties if so required. The arbitrator will be paid

fees in accordance with the Fourth Schedule of the 1996

Act. Both parties will share the costs of the arbitration

equally.

12. Registry is directed to dispatch a copy of this order to

Ms. Sushma Khosla for seeking consent at the following

address:

Ms. Sushma Khosla, (Retired District & Sessions Judge) R/o HIG 3/142, Anand Vihar, Baghmugalia, Bhopal (M.P.)

Mobile No.9425468820 Email: [email protected]

13. List the case for consent of Arbitrator in the week

commencing from 3.1.2022.

(VISHAL DHAGAT) JUDGE

mms

Digitally signed by MONSI M SIMON Date: 2021.12.08 11:32:30 +05'30'