Full Text
Order delivered on: February 22, 2013 Arb.P. No. 370/2012
ANIL KOCHHAR ..... Petitioner
Through Mr.Ajay Malhotra, Adv.
Through Ms.Renuka Arora, Adv.
JUDGMENT
1. Petitioner Anil Kochhar has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 praying for appointment of a sole arbitrator to adjudicate the disputes between the parties.
2. As far as existence of agreement between the parties is concerned, the respondent has not denied the same. The similar is the position of arbitration clause. The main contention of the respondent is that in exercise of power conferred under Clause 14 of the agreement, Mrs.Rita Kumar, retired IAS, has been appointed as the sole arbitrator to adjudicate the disputes between the parties.
3. The contention of the petitioner is that the said appointment made by the respondent is contrary to the scheme of Section 11(6) of the Act as well as well settled law on the aspect. He submits that before filing of the petition, the petitioner served a notice dated 7th August, 2012 requesting the respondent to hand over the possession of the premises by 31st August, 2013:DHC:1013
2012. Since the respondent failed to hand over the vacant and peaceful possession, the petitioner left with no option alternatively requested the respondent to appoint the arbitrator to adjudicate the disputes between the parties within 30 days from the date of receipt of the said notice. The receipt of the notice dated 7th August, 2012 is not denied by the respondent who has also failed to hand over the vacant and peaceful possession of the tenanted premises to the petitioner as mentioned in the notice latest by 31st August, 2012. It is also admitted position that after the expiry of 30 days from the date of receipt of the said notice, the respondent did not appoint the arbitrator in terms of clause 14 of the agreement.
4. In Datar Switchgears v. Tata Finance Ltd., (2000) 8 SCC 151, the Supreme Court explained as under:
5. In the case of Sikka Promoters Pvt. Ltd. Vs. Municipal Corporation of Delhi, decided on 17th November, 2011 in Arb.P.No.106/2011 and I.A.No.5815/2011 by S.Muralidhar, J. who has taken the same view after discussing both the decisions referred above as well as Union of India v. Bharat Battery Manufacturing Co. (P) Ltd., in which case it was held that Section 11(8) of the Act would come to the aid of the appellant therein only if “the appellant appointed the arbitrator within 30 days from the date of receipt of request to do so from the respondent or the extended time, as the case may be.” Since that was not done “the appellants are estopped from making an appointment of the arbitrator in terms of Clause 24 of the agreement after Section 11(6) petition is filed by the respondent. Once Section 11(6) petition is filed before the Court, seeking appointment of an arbitrator, the power to appoint an arbitrator in terms of arbitration clause of the agreement ceases.”
6. In view of the settled law, it is clear that the respondent had forfeited its right to appoint the arbitrator after the expiry of statutory period. The discretion of appointment of sole arbitrator is now left with the Court. Thus, the appointment of Mrs.Rita Kumar is not a valid appointment in accordance with law. The prayer made in the petition is allowed.
7. Mr.Jagjit Singh, Advocate, (Chamber No.156, Lawyers’ Chambers Block, Delhi High Court, Mob.9810034684), is appointed as sole Arbitrator to adjudicate the disputes between the parties arising out of the agreement dated 24th April, 2003 to be conducted under the aegis of Delhi High Court Arbitration Centre. The fees of the Arbitrator be also paid under the said Rules.
8. The petition is accordingly disposed of.
9. A copy of this order be communicated to the learned Arbitrator as well as the Secretary to the Arbitration Centre forthwith. Copies of the same be also given dasti to the learned counsels for the parties.
JUDGE FEBRUARY 22, 2013