Madras High Court
Same Deutz Fahr India Private ... vs Also At on 11 August, 2023
Arb.O.P.(Com. Div.) No.238 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.08.2023
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
Arb.O.P.(Com. Div.) No.238 of 2023
Same Deutz Fahr India Private Limited,
Representated by P.Ramesh. ... Petitioner
Vs.
Anmol Vitthal Abhang,
Proprietor of M/s.Sai Shraddha Tractors,
Shevgaon Road,
Kukana Post (Newasa),
District, Ahmednagar,
Maharashtra - 414 604.
Also at:
T P/O - Kukana,
Tal - Neawasa, Ahmednagar,
Maharashtra - 414 604. ... Respondent
PRAYER: Petition filed under Section 11 of the Arbitration and
Conciliation Act, 1996 to appoint a sole arbitrator to adjudicate the dispute
between the petitioner and the respondent and to direct the respondent to
pay the cost.
For Petitioner : Ms.Prapti Mehta
For Respondent : Mr.Suyesh Palande
1/9
https://www.mhc.tn.gov.in/judis
Arb.O.P.(Com. Div.) No.238 of 2023
ORDER
This petition has been filed under Section 11 of the Arbitration and
Conciliation Act, 1996, seeking for appointment of an arbitrator by this
Court.
2. The petitioner is the manufacturer and the respondent is its dealer.
A dispute has arisen out of the dealership agreement dated 10.01.2019
entered into between the parties. The dealership agreement contains an
arbitration clause which is extracted hereunder:
"J.Dispute Resolution:
Any and all disputes, which may arise under, out
of, in connection with, or in relation to this agreement,
including those as to the application and / or
interpretation of this Agreement, or the legal relations
and / or mutual rights, performance and obligations of
the parties hereunder, shall be resolved through
negotiations by the authorised officers or
representatives of the Company and the dealer before
seeking outside resolution of the dispute. Those
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Arb.O.P.(Com. Div.) No.238 of 2023
disputes not resolved by negotiations, within thirty (30)
days from the date of notification of the disputes, shall
be resolved through arbitration by a sole arbitrator to
be appointed by the Director of the Company, who may
be authorised by the Board of Directors of the
Company in this regard. The arbitration proceedings
shall be held at Chennai in accordance with the
provisions of the Arbitration and Conciliation Act,
1996 as in force in India or any statutory modifications
or reenactments thereof. The Courts at Ranipet /
Vellore alone shall have exclusive jurisdiction in all
matters arising out of this agreement."
3. The petitioner has invoked arbitration in accordance with the
arbitration clause by issuing a notice to the respondent on 14.03.2023. The
said notice has also been returned with an endorsement 'refused', which
amounts to deemed service. Since there has been no consensus between the
parties with regard to the name of the arbitrator, the petitioner has filed this
petition under Section 11 of the Arbitration and Conciliation Act, 1996,
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Arb.O.P.(Com. Div.) No.238 of 2023
seeking for appointment of an arbitrator by this Court.
4. Notice has been served on the respondent in this petition and the
respondent is represented by a learned counsel. The respondent is yet to file
its counter in this petition. Sufficient opportunities have already been
granted by this Court to the respondent to file its counter, but, despite the
same, till date, counter has not been filed. The learned counsel for the
respondent, however, submits that since the dealership agreement dated
10.01.2019 has not been signed by the petitioner, the present petition is not
maintainable. However, the learned counsel for the petitioner would submit
that the agreement was infact signed by the petitioner and that the
respondent has also acted upon the said agreement by becoming the dealer
of the petitioner. Therefore, the submissions made by the learned counsel
for the respondent that the present petition is not maintainable, has to be
rejected by this Court.
5. In support of the learned counsel for the petitioner's submission,
she has also placed before this Court a Judgment of the Honourable
Supreme Court in the case of Caravel Shipping Services Private Limited
Vs. Premier Sea Foods Exim Private Limited reported in 2019 (11) SCC
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Arb.O.P.(Com. Div.) No.238 of 2023
461, wherein, in paragraph No.8, it has been held that it is sufficient that an
arbitration agreement needs to be in writing but it need not be signed.
Paragraph No.8 of the aforesaid decision of the Honourable Supreme Court
is extracted hereunder:
"8. In addition, we may indicate that the law in
this behalf, in Jugal Kishore Rameshwardas Vs.
Goolbai Hormusji, is that an arbitration agreement
needs to be in writing though it need not be signed. The
fact that the arbitration agreement shall be in writing
is continued in the 1996 Act in Section 7 (3) thereof.
Section 7 (4) only further adds that an arbitration
agreement would be found in the circumstances
mentioned in the three sub-clauses that make up
Section 7 (4). This does not mean that in all cases an
arbitration agreement needs to be signed. The only
pre-requisite is that it must be in writing, as has been
pointed out in Section 7 (3)."
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Arb.O.P.(Com. Div.) No.238 of 2023
6. Admittedly, the respondent was a dealer under the petitioner and
they have also signed the dealership agreement dated 10.01.2019 which
discloses that the petitioner is the manufacturer. While that be so, when the
respondent has acted upon the dealership agreement dated 10.01.2019, they
are bound by the terms and conditions of the said agreement which includes
the arbitration clause.
7. The Decision of the Honourable Supreme Court relied upon by the
learned counsel for the petitioner referred to supra, squarely applies to the
facts of the instant case. As seen from the decision of the Honourable
Supreme Court, it is clear that it would suffice if the arbitration agreement is
in writing and in certain cases it need not be signed when there are
supporting evidences to show that the parties have agreed upon the
arbitration clause. Therefore, the contentions of the learned counsel for the
respondent is rejected by this Court.
8. When this Court had expressed its view that this petition will have
to be allowed, the learned counsel for the respondent has placed before this
Court similar orders passed in respect of other dealership agreement,
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Arb.O.P.(Com. Div.) No.238 of 2023
wherein, this Court had appointed Mr.Keerthikiran Murali, Advocate, as an
arbitrator to adjudicate the dispute between the parties. He would request
this Court to appoint the very same arbitrator to adjudicate this dispute also.
Learned counsel for the petitioner has no objection for the same.
9. For the foregoing reasons and in view of the fact that an
Arbitration clause is available under the Dealership Agreement dated
10.01.2019, this Court appoints Mr.Keerthikiran Murali, Advocate as the
Sole Arbitrator to decide the dispute between the petitioner and the
respondent. Accordingly, this Arbitration Original Petition is allowed as
prayed for by issuing the following directions:
(a) This Court appoints Mr.Keerthikiran Murali, Advocate , who is
having office at No.22, M.G. Ramachandran Road, Kalashetra Colony,
Besant Nagar, Chennai - 600 090 (Mobile No.96554 46098) as a sole
Arbitrator to decide the dispute between the petitioner and the respondent
arising out of the Dealership Agreement, dated 10.01.2019;
(b) The Arbitrator shall be paid his remuneration / fees in accordance
with the 4th schedule of the Arbitration and Conciliation Act, 1996;
(c) Both the parties shall equally share the arbitrator's fees;
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Arb.O.P.(Com. Div.) No.238 of 2023
(d) The Arbitrator shall conduct the arbitration in accordance with the
provisions of the Arbitration and Conciliation Act, 1996 and shall complete
the arbitration within the specified time as prescribed under the said Act.
11.08.2023
Index : Yes/No
Speaking Order : Yes / No
Neutral Citation Case: Yes / No
ab
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Arb.O.P.(Com. Div.) No.238 of 2023
ABDUL QUDDHOSE. J.,
ab
Arb.O.P.(Com. Div.) No.238 of 2023
11.08.2023
https://www.mhc.tn.gov.in/judis
