Bombay High Court
Armstrong World Industries (India) vs Gurunath Enterprises And 3 Ors on 9 September, 2021
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
Digitally
signed by
PRASHANT
PRASHANT VILAS
VILAS RANE
RANE Date:
2021.09.15
12.IAL17963_2021.doc
19:18:45
+0530
PVR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO. 478 OF 2019
Knauf Ceiling Solutions (India) Pvt.Ltd.
(M/s. Armstrong World Industries (India) P. Ltd.) ... Applicant
V/s.
Shri. Gurunath Enterprises & Ors. ... Respondents
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Ms. Jinal Rathi i/b. Rahul Karnik for the Applicant.
Mr. Dushyant Purekar a/w. Mr, Rajat Dedhia for Respondent nos. 1 to 4.
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CORAM : G.S.KULKARNI, J.
DATE : 9th September, 2021.
P.C.:
1. Heard the learned Counsel for the applicant and 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 has
prayed for appointment of an arbitrator to adjudicate the disputes and
differences between the parties which are stated to have arisen under
the Channel Partner Agreement dated 2 March 2015.
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3. Learned Counsel for the applicant has drawn my attention to the
ledger account as annexed to the application as also the notice dated
22 March 2018, pointing out that an amount of Rs. 48,99,130/- was
due and payable as on such date. She has also pointed out that three
amounts were received in the year 2016 namely an amount of
Rs.7,00,000/- on 23 February 2016, Rs.4,00,000/- on 26 April 2016
and Rs.4,00,000/- on 10 August 2016. Thereafter the applicant
pursued with the respondents its demand for the balance amounts,
however, without any success. The applicant ultimately by its letter
dated 12 February 2019 invoked the arbitration agreement which as
contained in Clause 16(d) to the Channel Partner Agreement which
reads thus:-
"16 GOVERNING LAW & ARBITRATION
... ... .. .. ... .
(d) Any dispute, controversy or claim arising out of or
relating to this contract, or the breach, termination or invalidity
thereof, shall be settled by arbitration in accordance with the
Arbitration and Conciliation Act,1996 or any statutory
modification or re-enactment thereof for the time being in force;
(a) the appointing authority shall be the Indian International
and Domestic Arbitration Centre; (b) the number of arbitrators
shall be three (each Party shall be entitled to appoint one
arbitrator each and the two arbitrators so appointed shall
appoint the third and presiding arbitrator); (c) the place of
arbitration shall be Mumbai; and, (d) the language of the
arbitral proceedings shall be English."
4. The applicant also nominated and appointed Mr.Harish Kerzarkar
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to be a sole arbitrator for adjudicating the disputes and differences
between the parties and requested the respondents to consent for such
appointment. Such letter of the petitioner was responded by the
Advocate for the respondents by their letter dated 11 March 2019 by
which the respondents denying the claims of the applicant, however
stated that they disagreed with the appointment of Mr.Harish Kerzarkar
as sole arbitrator and in turn proposed to appoint Mr.Sushrut S.
Jadhwar, Advocate, as a sole arbitrator to adjudicate the disputes and
differences between the parties.
5. The petitioner by its letter dated 28 March 2019 did not accept
the counter suggestion as made by the respondents to appoint
Mr.Sushrut S.Jadhwar and in turn requested the respondents to select
an arbitrator from the panel of the Mumbai Centre For International
Arbitration (MCIA)/ Indian Council Of Arbitration / The Delhi
International Arbitration Centre (DAC)/ Federation of Indian Chambers
of Commerce and Industry (FICCI) or any other arbitration
organization/association to be appointed as a sole arbitrator. As this
letter of the applicant was not responded by the respondents and an
appointment of the arbitrator as could not be made mutually between
the parties, the petitioner has approached this Court by filing the
present petition.
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6. A reply affidavit has been filed on behalf of the respondents
opposing this petition asserting issues on the merits of the disputes and
maintainability of the claims, limitation etc., which in my opinion, may
not be relevant in the adjudication of this petition under Section 11 of
the Act. A perusal of the reply of the respondents indicates that the last
payment which was made by the respondents to the applicant was in
the year 2016, is not denied. Also it is clear that the notice invoking the
arbitration was issued on 12 February 2019 and is replied by the
respondents on 11 March 2019, proposing to appoint an arbitrator,
otherwise than the one suggested by the applicant.
7. In my opinion, for the purpose of adjudication of this application,
what is relevant is the reply dated 11 March 2021 of the respondents to
the notice dated 12 February 2019 of the petitioner wherein the
respondents have clearly agreed for appointment of a sole arbitrator
denying the appointment of the arbitrator as suggested by the
petitioner. Once the respondents have agreed for appointment of an
arbitrator, the averments on merits of the disputes as urged in the reply
would neither refrain nor come in the way for this court to proceed to
exercise jurisdiction under Section 11 of the Act to appoint an
arbitrator, due to a failure on the part of the respondents to agree to
appoint an arbitrator.
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8. At this stage, on a query made by the Court to the learned
Counsel for the respondents, he fairly states that his client is interested
in appointment of a sole arbitrator although under the arbitration
clause the parties have agreed for appointment of a tribunal; so also is
the request as made by the petitioner. The parties accordingly have
consented for appointment of a sole arbitrator.
9. In the above circumstances, the application is required to be
allowed. It is accordingly allowed in the following terms:-
ORDER
(i) Mr.Rohan Savant, Advocate is appointed as a sole Arbitrator to arbitrate the disputes and differences the parties as arising under the Channel Partner Agreement dated 2 March 2015.
(ii) The learned prospective Sole Arbitrator, fifteen days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act,1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application with a copy to be forwarded to both the parties;
(iii) At the first instance, the parties shall appear before the prospective arbitrator within 15 days from today on a date which may be mutually fixed by the prospective sole arbitrator; 5/6
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(iv) All contentions of the parties are expressly kept open;
(v) The application is disposed of in the above terms. No costs.
(vi) Office to forward a copy of this order to the learned Arbitrator on the following address and also on e-mail:-
"301, Rustom Building, Veer Nariman Road, Fort, Mumbai-400023.
Mobile no. 9833126212 e-mail: [email protected]"
(G.S.KULKARNI, J.) 6/6