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HIGH COURT OF DELHI
ARB.P. 226/2010
CHD DEVELOPERS LTD Petitioner
Through: Mr. Gyanendra,Advocate
Through: Mr.Joydeep Mazumdar,Advocate
11.08.2011 This petition has been preferred under Section 11 of the
Arbitration and Conciliation Act to seek the appointment of an arbitrator in terms of clause 7.1.2 of the advertising agreement entered into between the parties on 12.02.2008. Clause 7.1.2 of the agreement states that disputes shall be resolved through arbitration by a sole arbitrator. However, in case the parties fail to appoint the sole arbitrator within thirty days of receipt of the notice, the reference shall be made to three arbitrators. Each party would appoint one arbitrator each, and the arbitrators so appointed shall appoint the presiding arbitrator.
The petitioner, after sending notice dated 05.12.2009 raising its claims and grievances, invoked arbitration agreement vide notice dated 01.02.2010. The petitioner alleged breach of the agreement by
2011:DHC:6954 th6 r6spond6nt 3nd claimEd damagES from thE rEspbndEnt. VidE noticE datEd 20.03.2010, thE pEtitioriEr substitutEd thE namE of thE arbitrator as thE EarllEr appointEd arbitrator was not availablE.
DEspitE rECEipt of this noticE, thE rEspondEnt failEd to appoint thE sEcond arbitrator. ConsEquEntly,this pEtition has bEEn prEfErrEd.
ThE rEspondEnt doES not disputE thE ExistEncE ofthE agrEEmEnt which contains tha arbitration clausE. ThE ExistancE of tha disputas and livE claims and countar claims is also not disputad.
Tha submission of lEarnad counsai for tha raspondant is that aftar tha Entartainmant of this patition,tha raspondant has nominatad an arbitrator in March 2011. Howavar,tha nomination oftha arbitrator by tha raspondant cannot ba said to ba in ordar in tha light of tha dacision of tha Suprama Court in Dattar Switchgears Ltd. v. Tata
Finance Ltd.& Anr.,(2000)85CC 151. in my viaw, tha raspondant has lost its right to nominata tha arbitrator, as tha arbitrator was not appointad bafora tha filing of tha prasant patition.
Accordingly, this patition is allowad. I appoint Mr. B.B.
Chaudhary,ratd. ADJ astha sacond arbitrator. Tha two arbitrators may now procaad to appointtha prasiding arbitrator.
Patition stands disposad of.
VIPIN SANGHI,J AUGUST 11,2011 sr ' HIGH COURT OF DELHI
#1 ARB.P.226of2010 CHD DEVELOPERS LTD Petitioner
Through: Mr.K.K.Jha,Advocate.
Through: Ms.Prema Mehta,Advocate.
: o/„ 24.09.2012
I.A. No.10315 of 2012 Ifor modification of order dated 11^'' August
2011)
ORDER
1. This is an application seeking modification ofthe order dated 11 August
2011.
2. A perusal ofthe said order shows that this Court had appointed Mr. B.B. Chaudhary, retired ADJ as the second Arbitrator. The Petitioner had already appointed Mr. V.K. Malhotra as its Arbitrator. The said two learned Arbitrators were to proceed to appoint the presiding Arbitrator.
3. The order dated ll''^ August 2011 is clarified by directing that Mr. V.K. Malhotra and Mr. B.B. Chaudhary, shall within a period of four weeks from ( \ today finalize the name of the third Arbitrator. The fees of the arbitral Tribunal so constituted will be in terms ofthe Delhi High Court Arbitration Centre(Arbitrators'Fees)Rules.
4. The application is disposed of.
5. Copy ofthis order be given dasti.
S. MURALIDHAR,J