UNSCO ASSOCIATIONS SAHKARI AWAS SAMITI LIMITED v. M/S CONNOISSEUR INFRATECH PVT LTD & ORS

1. Respondents No.3, 4 and 5 have been served. However, despite service, there is no appearance on their behalf. They are proceeded ex parte.

2. The present petition has been filed for appointment of an Arbitrator under Section 11(6) of Arbitration and Conciliation Act, 1996. It is submitted that there was an agreement between the petitioner and the respondent. Some dispute had arisen and, thereafter, the petitioner had invoked the arbitration clause 22 of MoU dated 12.05.2011 for construction on a plot. The invocation notice dated 26.03.2014 was served upon the 2014:DHC:6889 respondent by way of speed post. It is submitted that as per clause 22 of the MoU, each party was required to appoint their own Arbitrator and then the two Arbitrators, so appointed, was to appoint the presiding Arbitrator. It is submitted that the petitioner has already appointed its Arbitrator Mr Pradeep Mahajan, Advocate and informed the respondent vide the said invocation notice, but the respondent has failed to appoint his Arbitrator within 30 days. It is prayed that since the arbitration has to be conducted by an Arbitral Tribunal consisting of three Arbitrators, the Court should appoint one Arbitrator on behalf of respondent, then the two Arbitrators will choose the presiding Arbitrator.

3. Learned counsel for the respondent has submitted that he had not received any notice of invocation of the Arbitral Tribunal and appointment of the Arbitrator by the petitioner. It is, however, submitted that without prejudice to the rights and contentions of the respondent, the respondent has no objection if an Arbitrator be appointed by this Court and give the liberty to these Arbitrators to appoint the presiding Arbitrator. It is further contended that the MoU was cancelled. This contention is refuted by the petitioner.

4. Heard. File perused.

5. There is no dispute to the fact that there was an MoU dated 12.05.2011. Clause 22 of the said MoU clearly stipulates that in case of dispute between the parties, the matter be referred to the Arbitral Tribunal. Each party shall have a right to appoint one Arbitrator and those two Arbitrators then appoint the presiding Arbitrator. There is a notice dated 26.03.2014 issued by the petitioner invoking this arbitration clause and appointing his own Arbitrator, namely, Pradeep Mahajan. Learned counsel for the respondent has denied the receipt of this notice. However, the petitioner has placed on record the receipts showing the proof of the dispatch. It is not in dispute that the address shown on the notice is a correct address of the respondent and the receipts also show that notice was sent on the said address. The presumption under the law, therefore, can be taken that the parcel containing the notice must have reached at the correct address. The petitioner has also placed on record the proof of delivery which shows that the parcel containing the notice was delivered to the respondent on 29.03.2014. I am, therefore, satisfied that the petitioner has validly served the invocation notice, whereby not only he invoked the arbitration clause, but pursuant to that, also appointed his Arbitrator. The respondent has thereafter failed to appoint his own Arbitrator. I, therefore, appoint Justice Manju Goel (Retired Judge, Delhi High Court). The learned counsel for the respondent. With these directions, the petition stands disposed of. The Arbitrators shall be at liberty to fix his own fee.

DEEPA SHARMA (JUDGE) DECEMBER 09, 2014 BG