M/S Amarjit Singh Security Agency ... vs Medical Superintendent Esic ...
2021 Latest Caselaw 7102 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Arbitration Application No. 24/2021

M/s Amarjit Singh Security Agency Office, 24, Janata Colony,
Mungaska, Alwar (Raj.) Through Owner/proprietor Col. Amarjit
Singh S/o Shri Balwant Singh Aged About 59 Years, R/o House
No. 1558 Sector 34-D Chandigarh (Haryana)
                                                                      ----Petitioner
                                       Versus
Medical Superintendent Esic Hospital, Desula, Mia, Alwar (Raj.)
                                                                    ----Respondent

For Petitioner(s)            :    Mr. Mohit Gupta
For Respondent(s)            :    Mr. Namo Narayan Sharma



          HON'BLE MR. JUSTICE PANKAJ BHANDARI

                             Judgment / Order

02/12/2021

1. Applicant has preferred this arbitration application seeking

appointment for arbitrator as per arbitration clause.

2. It is contended by counsel for the applicant that in the

agreement, Clause-23 deals with the arbitration clause. It is

contended that after the difference and dispute arose in

connection with the agreement, the same was to be referred to

sole arbitrator to be appointed by M.S. ESICH, Hospital, Alwar. It

is further contended that the dispute arose and the applicant

applied to the Medical Superintendent, ESIC Hospital, Desula, Mia

Alwar letter dated 23.01.2021 but no arbitrator was appointed and

therefore, the applicant filed the present arbitration application on

03.03.2021.

3. In reply, it is contended by counsel for the non-applicant that

the non-applicant has already appointed Shri Vinod Kumar

(2 of 3) [ARBAP-24/2021]

Sharma as an arbitrator, dated 24.11.2021, therefore, the present

arbitration application has become infructuous.

4. Counsel for the non-applicant has placed reliance on the

judgment passed by the Apex Court in "Datar Switchgears Ltd

vs Tata Finance Ltd. & Anr " (2000) 8 SCC 151, wherein it was

held that in cases arising under Section 11 (6) of the Arbitration

and Conciliation Act, if the opposite party has not made an

appointment within 30 days of demand, the right to make

appointment is not forfeited but continues, but an appointment

has to be made before the former files application under Section

11 seeking appointment of an arbitrator. Only then the right of the

opposite party ceases.

5. I have considered the contentions.

6. Admittedly, the notice was given on 30.01.2021 and the

present Arbitration Application was filed on 03.03.2021 and the

arbitrator was appointed after filing of the arbitration application

on 24.11.2021. The judgment of "Datar Switchgears Ltd vs

Tata Finance Ltd. & Anr" (supra) would therefore, apply to the

present facts of the case and this Court is entitled to appoint the

arbitrator. There being an arbitration clause and arbitrator being

not appointed by the opposite party prior to filing of the

arbitration application before the Court, hence, present Arbitration

Application deserves to be and is accordingly, allowed.

7. This Court appoints Shri Harvinder Singh (Retd. District

Judge) Plot No.D-231A, Flat No.102, Tulsi Marg, Madho Singh

Circle, Bani Park, Jaipur 302016 as an Arbitrator to decide the

dispute.

8. Accordingly, Arbitration Application stands allowed. The

arbitrator shall be entitled to lay down fees as provided under

(3 of 3) [ARBAP-24/2021]

Manual of Procedure for Alternative Disputes Resolution, 2009 as

amended from time to time. 8. Registry is directed to intimate

Shri Harvinder Singh (Retd. District Judge ) and obtain his formal

consent.

(PANKAJ BHANDARI),J

ARTI SHARMA /32

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