ARBAP/39/2022
2023 Latest Caselaw 501 UK

Citation : 2023 Latest Caselaw 501 UK
Judgement Date : 24 February, 2023

Uttarakhand High Court

ARBAP/39/2022 on 24 February, 2023

             IN THE HIGH COURT OF UTTARAKHAND
                                  AT NAINITAL
                 THE HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI


            ARBITRATION APPLICATION NO. 39 OF 2022

                           24TH FEBRUARY, 2023

BETWEEN:
M/s Laxmi Contractor & General Order Supplier
                                                                      .....Applicant.
And

Garhwal Mandal Vikas Nigam                                     ....Respondent.

Counsel for the Applicant : Mr. Rajendra Kumar Arya, learned counsel.

Counsel for the Respondent : Ms. Abhilasha Tomar, proxy counsel for Mr. Sandeep Kothari, learned counsel.

The Court made the following:

JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

The present order is being passed in continuation of

the earlier orders passed in this application.

2. On 23.09.2022, the following order was passed:-

"Mr. Sagar Kothari, the learned counsel for the applicant.

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

Issue notice.

Counsel for the respondent appears and accepts notice.

The applicant seeks appointment of the sole arbitrator, under Section 11(6) of the Arbitration and Conciliation Act, 1996, to adjudicate the disputes between the parties, arising out of the MOU dated 29.01.2021 entered into between the parties. Clause 92 of the said MOU contains an arbitration agreement to resolve the disputes, which may arise between the parties under the MOU.

The case of the applicant is that the applicant invoked the arbitration agreement vide notice dated 27.06.2022. The respondent sought to make unilateral appointment of the arbitrator, and the applicant has already challenged his competence to continue as the

arbitrator. However, no decision has been rendered by the Arbitral Tribunal till date.

In these circumstances, the applicant seeks appointment of the sole arbitrator.

Before I proceed further in the matter, it is necessary that the Arbitral Tribunal should deal with, and dispose of the application moved by the applicant.

Let the Arbitral Tribunal decide the said application before the next date.

List on 21.10.2022."

3. On 06.01.2023 and 13.01.2023, the following

orders were passed:-

"Ms. Abhilasha Tomar, the learned counsel holding brief of Mr. Sandeep Kothari, the learned counsel for the respondent.

None appears for the applicant, when the matter is called out.

Counsel for the respondent, on instructions, states that Mr. Abhishek Kumar Anand was appointed as the Arbitrator.

However, he has left the country on study leave and, therefore, the arbitration proceedings have not progressed.

In these circumstances, it is clear that the mandate of the Arbitral Tribunal, constituted by the respondent, stands terminated, since he has become de facto unable to perform his functions, and, for other reasons, he has failed to act without undue delay.

Consequently, I see no impediment in allowing this application.

However, since the applicant is not present today, orders are deferred.

List on 13.01.2023."

"Mr. Rajendra Arya, learned counsel for the applicant. Ms. Abhilasha Tomar, proxy counsel for Mr. Sandeep Kothari, learned counsel for the respondent.

At the outset, learned counsel for the respondent clarifies her statement made on 06.01.2023 to say that Mr. Abhishek Kumar Anand, who was appointed as the Arbitrator, is on study leave, but he has not left the country. Nevertheless, arbitration proceedings have not been conducted by Mr. Abhishek Kumar Anand.