ARBAP/8/2021
2022 Latest Caselaw 2241 UK

      IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

      THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI

             ARBITRATION APPLICATION NO. 08 OF 2021

                            22nd July, 2022

Between:

Vinod Negi                                 ...... Applicant/Petitioner

and

Garhwal Mandal Vikas Nigam                 ......        Respondent



Counsel for the applicant      :      Mr.   Piyush   Garg,   learned
                                      counsel

Counsel for the respondent    :       Mr. Sandeep Kothari, learned
                                      counsel



The Court made the following:


JUDGMENT:

The present application has been preferred

under Section 11(6) of the Arbitration and Conciliation

Act, to seek appointment of an Arbitrator in terms of the

arbitration agreement contained in MOU dated

01.02.2021, entered into between the parties. The

parties had entered into the said MOU, where under the

applicant was licensed the right to excavate the minor

minerals in Chugan Lot No. Yamuna 21/3, Tehsil

Vikasnagar, in consequence of the tender floated by the

respondent. The tenure of the MOU is stated to be for

the period 2020-2025 over an area of 68.364 hectare

with capacity of six lakh tonnes per mining session. The

applicant claims that disputes have arisen between the

parties on account of alleged breach of the MOU by the

respondent. The applicant claims that the respondent

has been raising illegitimate demands on the applicant.

The MOU contains an arbitration clause in Clause 92,

which reads as follows:

";g fd i{kdkjksa esa orZeku Le`fr i= ls vFkkZUrj rFkk #ikUrj ds lEcU/k esa

fookn gksus ij rFkk vU; fdlh izdkj dk fookn gksus ij ekeyk] Ek/;LFkrk }kjk fuLrkfjr fd;k tkosxk vkSj vU; mipkj oftZr gksxkA i{kdkj ijLij lgefr ls izFkei{k ls izcU/k funs'kd ;k mu }kjk fyf[kr esa ukfer O;fDr dks ,dy Ek/;LFk fu;qDr djrs gSA ,dy Ek/;LFk Lo;a ;k mu }kjk euksuhr O;fDr fookn dk fuLrkj.k djsxkA Ek/;LFk dh dk;Zokgh Hkkjrh; lqyg ,oa Ek/;LFk vf/kfu;e 1996 ds vUrZxr dh tkosxhA U;k;ky; dk {ks=kf/kdkj ek= nsgjknwu gksxk] vU; LFkku dk {ks=kf/kdkj fof'k"V #i ls oftZr jgsxkA ;g Hkh fof'k"V #i ls fu/kkZfjr fd;k tkrk gS] tks Hkh i{k e/;LFk dk;Zokgh lUnfHkZr djsxk] og Dyse esa ekaxh tk jgh /kujkf'k dh ,d izfr'kr /kujkf'k e/;LFk ds ikl vfxze #i ls tek djsxk] fd tks gtsZ ds fuLrkj.k esa rFkk e/;LFkrk okn O;; esa fu/kkZfjr gksxhA i{kdkjx.k bl RkF; ij vkifRr ugh djrs gS vkSj uk gh djsaxs fd] e/;LFk egksn; 'kkldh; vf/kdkjh gSa vkSj mRRkjk[k.M 'kklu ;k mlls lEcfU/kr dEiuh ds vf/kdkjh gSaA i{kdkj bl rF;ksa ls lger gS fd fookn gksus ds mijkUr i{kdkj ,l ijLij lfU/k bl vk'k; ls vafdr djsxsa fd mUgsa izFke i{k }kjk euksuhr e/;LFk ij dksbZ vkifRRk ugha gksxh] i{kdkj euksu;u o izLrkfor e/;LFk ds fo#) dksbZ vkifRRk ughs djsxsaA ;g Li"V fd;k tkrk gS fd ;fn i{kdkjksa esa ls dksbZ i{k lger ugh gksrk gS rks e/;LFk i{kdkjksa esa

lekIr le>h tk;sxhA f}rh; i{k fof'k"V #i ls e/;LFk ds pqukSrh ds vf/kdkj dks

vf/kR;tu djrk gSA"

2) The applicant invoked the arbitration

agreement while raising his claims on 06.04.2021.

However, the respondent did not appoint the Arbitrator

in terms of the agreement between the parties.

Consequently, the applicant preferred this Arbitration

Application on 06.06.2021.

3) Upon issuance of notice, the respondent has

filed its counter-affidavit. The respondent has disclosed

that the respondent has already appointed an Arbitrator

to adjudicate the disputes between the parties vide

communication dated 05.10.2021, which has been filed

along with the counter-affidavit.

4) The letter of appointment itself records the

fact that the applicant has preferred the present

Arbitration Application, and consequently, the Arbitrator

has been appointed. Since the Arbitrator was not

appointed by the respondent within 30 days of the

arbitration agreement being invoked, and even by the

time when the present Arbitration Application was

preferred by the applicant, the respondent lost its right

to make appointment of the Arbitrator, and the

Arbitrator could be appointed only by the Chief Justice

under Section 11(6) of the Arbitration and Conciliation

Act. The appointment made by the respondent is,

therefore, of no avail. The fact that the respondent has

appointed the Arbitrator itself shows that the respondent

does not dispute the fact that there is an arbitration

agreement between the parties, and that disputes have

indeed arisen under the aforesaid agreement, which are

referable to arbitration.

5)            Accordingly,   the         present        Arbitration

Application is allowed.           Accordingly, I appoint Mr.

Justice Pradeep Nandrajog, Retd. Chief Justice, Bombay

High Court, to act as a sole Arbitrator to adjudicate the

disputes between the parties arising out of the aforesaid

agreement.

________________ VIPIN SANGHI, C.J.

Dt: 22nd July, 2022 Negi