Bombay High Court
Naik Business Services Private Limited vs Lmp Precision Engineering Co.Pvt Ltd ... on 24 January, 2019
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
ARBAP 59-14.doc
Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO. 59 OF 2014
Naik Business Services Private Limited .Applicant
Vs.
LMP Precision Engineering Co. Pvt. Ltd. & ors. .Respondents
WITH
ARBITRATION PETITION NO. 719 OF 2014
Naik Business Services Private Limited .Applicant
Vs.
LMP Precision Engineering Co. Pvt. Ltd. .Respondent
Mr. Prathamesh Kamat a/w Mr. Vikram Kamat, Ms Shruti Salian i/b.
M/s. Kochhar & Co., Advocate, for the Applicant/Petitioner
Mr. Bimal Rajashekhar a/w Mr. Rishi Murarka i/b. Mr. Ashwin
Shankar, Advocate, for the Respondents
CORAM : G. S. Kulkarni, J.
DATE : 24.01.2019
P.C.
. Heard Mr. Kamat, learned counsel for the Petitioner and
Mr. Rajashekhar, learned counsel for the Respondents.
2. This is an Application under Section 11 of the Arbitration
and Conciliation Act, 1996 (For short "The Act"), whereby the
Applicant prays for appointing an Arbitral Tribunal to adjudicate the
disputes and differences between the Applicant and the three
Respondents namely (i) LMP Precision Engineering Co. Pvt. Ltd., (ii)
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Prakash Patel & (iii) Anand Prakash Patel. A perusal of the record
indicates that earlier the Applicant had moved this Court by filing a
Petition under Section 9 of the Arbitration and Conciliation Act, being
ARBPL No. 597 of 2012. Admittedly, in the said Petition, the
Respondent No. 1 - LMP Precision Engineering Co. Pvt. Ltd. was not a
party. Initially, in an order dated 09.05.2012 passed by this Court in
the said Petition, a statement as made on behalf of the Respondents
therein was recorded as contained in paragraph 9 of the said order that
the Respondents would give a written advance intimation of atleast 4
weeks to the Petitioner in case the name and address of the proposed
transferee / alienee was to be recorded and which continued to be an
ad-interim protection. The said Petition was finally disposed of by an
order dated 25.06.2012 passed by this Court
( Coram : S. J. Kathawalla, J. ), wherein the dispute was referred for
the arbitration appointing the sole Arbitrator. Accordingly, the
following order was passed :-
"Heard learned Advocates appearing for the Parties
and the following order is passed.
(i) The dispute between the parties is referred to
the sole Arbitration of Mr. Gaurav Joshi, Advocate.
(ii) To enable the Petitioner to move the learned
Arbitrator for reliefs under Section 17 of the
Arbitration and Conciliation Act, the statements of
the Respondents recorded in the orders dated 09-05-
2012 and 04-06-2012 shall continue for a period of
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four weeks from the date of this order.
(iii) The proceedings filed under Section 9 of the
Act, shall be treated by the learned Arbitrator as
proceedings under Section 17 of the Act. However,
the parties are entitled to file any supplementary
Affidavits if any, within a period of one week from
today.
(iv) The Arbitrator shall proceed on the basis
that no orders are passed by this Court on merits
and all rights and contentions of the parties,
including the issue of jurisdiction are kept open.
(v) The parties shall bear the cost of the
arbitration equally.
(vi) The Arbitrator shall endeavour to pass his
Award within a period of six months from the date
of the first meeting held with the parties.
4. The Arbitration Petition accordingly
stands disposed of."
3. A statement of claim came to be filed on behalf of the
Applicant in which the Applicant impleaded the Respondent No. 1 -
LMP Precision Engineering Co. Pvt. Ltd. ( For short "LMP" ). An
objection was raised on behalf of LMP under Section 16 of the Act that
LMP is not a party to the Agreement dated 02.02.2012 and therefore,
the arbitration proceedings are not maintainable against it and LMP be
deleted as Respondent in the arbitral proceedings. The learned sole
Arbitrator by an order dated 22.04.2013 allowed the Application as
filed on behalf of LMP directing that LMP be deleted as a party
Respondent from the arbitral proceedings. Consequent to the said
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order, the present Application under Section 11 of the Act has been
filed by the Applicant.
4. The above facts clearly indicate that the disputes and
differences between the Applicant and the signatories to the
Agreement namely Respondent Nos. 2 & 3 is the subject matter of the
pending arbitral proceedings. The learned Arbitrator allowing the
Application of LMP deleting LMP from the arbitral proceedings is
subject matter of the said order dated 22.04.2013 passed by the
learned sole Arbitrator.
5. In these circumstances, in my considered opinion, the
appropriate remedy for the Applicant was to assail the said order dated
22.04.2013 passed by the learned sole Arbitrator and not this
Application under Section 11 of the Act.
6. It may thus be observed that it would be appropriate for
the Applicant to pursue such proceedings as permissible in law to
challenge the order dated 22.04.2013 passed by the learned sole
Arbitrator under Section 16 of the Act, if the Applicants feel aggrieved
by the said order.
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7. In the above circumstances, it would not be possible to
grant any relief to the Applicant as prayed for in this Application. The
Application is, accordingly, disposed of by the following order :-
O R D E R
(i) The Applicant is at liberty to prosecute appropriate proceedings as permissible in law to challenge the order dated 22.04.0213 passed by the learned sole Arbitrator under Section 16 of the Act.
(ii) All contentions of the parties in that regard are expressly kept open.
(iii) No costs.
8. The Application is, accordingly disposed of.
9. In view of the above order passed on the Section 11 Application, learned counsel for the Petitioner seeks leave to withdraw Arbitration Petition No. 719 of 2014, with liberty to file appropriate proceedings. Allowed to be withdrawn with liberty as prayed for.
All contentions of the parties in this regard are expressly kept open.
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