Punjab-Haryana High Court
Curo India Pvt. Ltd vs M/S Kutons Retail India Ltd on 8 February, 2013
Author: Jasbir Singh
Bench: Jasbir Singh
Arb. Case No. 28 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Arb. Case No. 28 of 2012
Date of decision : 8.2.2013
Curo India Pvt. Ltd., Ludhiana ...Petitioner
Vs.
M/s Kutons Retail India Ltd., New Delhi ........Respondent
CORAM: Hon'ble Mr. Justice Jasbir Singh
Present:- Mr. Chaman Lal Sharma, Advocate, for the petitioner
None for the respondents
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Jasbir Singh, J. (Oral)
The petitioner has filed this petition under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an arbitrator, in terms of contract agreement dated 28.3.2007.
It is necessary to mention here that earlier the petitioner was known as 'Dynamic Continental Pvt. Ltd.' and w.e.f. from 29.12.2010, its name was changed as 'Curo India Pvt. Ltd.' Vide agreement dated 28.3.2007, the petitioner leased out Shop No. 7 (Ground Floor) situated in Flamez Mall, 755, Gurdev Nagar, Ludhiana, to the respondent. In the said agreement, in case of dispute, there is a provision to settle it through the process of arbitration. Clause 7 of the agreement reads thus :-
"(a) If any dispute arises between the parties hereto during the subsistence of this agreement or thereafter, in connection with the validity, interpretation, implementation or alleged Arb. Case No. 28 of 2012 -2- material breach of any provision of this agreement or regarding a question including the question as to whether the termination of this agreement by one party hereto has been legitimate, the parties hereto shall endeavour to settle such dispute amicably. The attempt to bring about an amicable settlement is considered to have failed as soon as one of the parties hereto, after reasonable attempts which attempt shall continue for not less than 30 (thirty) days, gives notice thereof to the other parties in writing.
(b) All disputes, controversies and differences of opinion arising out of or in connection with this agreement or for the breach thereof which cannot be settled amicably by the parties hereto, shall be settled by arbitration in accordance with the Indian Arbitration and Conciliation Act, 1996 by the sole arbitrator to be appointed by mutual consent, failing which by the Hon'ble High Court of Punjab and Haryana. The parties shall appoint/take steps to appoint the sole arbitrator within 15 (fifteen) days of receiving a notice from the other party in accordance with Clause 7(a) above. The venue of arbitration shall be New Delhi. The parties shall continue to fulfill their obligations under this Agreement pending the final resolution of the dispute and the parties shall not have the right to suspend their obligations under the agreement by virtue of any dispute being referred to arbitration.
(c) The proceedings of arbitration shall be in the English language.
(d) The parties hereto shall submit to the Arbitrator's award and the award shall be final and the enforceable in the competent court of law. Cost of arbitration shall be paid by the party as decided by the Arbitrator/the party that has lost."
As per the above said condition in the agreement, firstly, an attempt needs to be made to amicably settle the dispute and if failed, it will be referred to an arbitrator.
Arb. Case No. 28 of 2012 -3-
Before coming to this Court, the petitioner sent a notice making request to the respondents to appoint an arbitrator on 3.10.2011 (P-3). When nothing was done, present petition was filed.
After notice, despite service, the respondents failed to put in appearance and the matter was adjourned to 27.7.2012. None has appeared on that date and the matter was again adjourned to 7.12.2012. None was present to represent the respondent on that date also and the matter was adjourned to today. Today also position is the same. None has appeared on behalf of the respondents.
Taking note of the facts and circumstances of this case, this petition is allowed and in terms of provisions of the agreement, Sh. Mukal Mudgal, Retired Chief Justice of this Court, is appointed as an arbitrator to settle dispute between the parties.
The arbitrator shall charge fee and expenses as per norms/fixed by this Court.
(Jasbir Singh) Judge 8.2.2013 Ashwani