Madhya Pradesh High Court
Proprietor M/S Goyal And Company vs General Manager Union Bank Of India And ... on 27 January, 2016
1
Arbitration Case No.25/2011
27.1.2016
Shri Ajay Gupta, learned counsel for the applicant.
Shri Anand Pathak, learned counsel for the
respondents.
This application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short "the Act") has been filed by the applicant for appointment of Arbitrator.
The case of the applicant is that the tenders were invited by the respondents for deep screening of track and insertion of concrete sleepers etc. for Ujjain-Bhopal section and the applicant had submitted the tender and was awarded the contract which was to be completed within the stipulated period of ten months w.e.f 31.3.1995. The dispute had arisen between the parties and the contract was terminated on 28.7.1997. The applicant had submitted the final bill on 8.9.1997. Thereafter, the communications were sent by the applicant and an application was filed before the District Judge under Section 11 of the Arbitration and Conciliation Act, 1996 which was rejected vide order dated 16.12.2013, against which the applicant had filed writ petition being W.P.No.658/2004 and this Court taking note of the judgment of the Supreme Court in the matter of SBP & Company Vs. Patel Engineering Ltd. and Another, reported in (2005) 8 SCC 618 had disposed of the writ petition giving liberty to the applicant to file an application under Section 11(6) of the Act before the Nominee Judge of the High Court and further observing that such an application will be tried on its own merit regardless of the order of the District Court. Thereafter, the present application has been filed.
2The respondents have filed the reply raising objection that the applicant had not acted within time in terms of arbitration clause and in view of the special conditions of contract, the dispute is not arbitrable and that the dispute has become time barred.
In the present matter the arbitration agreement between the parties is not in dispute. The special condition of contract containing the arbitration clause has been filed along with the application under Section 11 of the Act which contains the signature of both the parties. The general conditions of contract as contained in Clause 63 & 64 are also on record and they are also not in dispute.
In terms of Section 11(6A) of the Arbitration and Conciliation Act, 1996 as amended and inserted vide Arbitration and Conciliation (Amendment) Act, 2015 notified on 1.1.2016, at this stage the issue is confined to the examination of existence of the arbitration agreement. The arbitration agreement between the parties is not in dispute, hence in terms of Section 11 of the Act, I am of the opinion that an independent arbitration needs to be appointed to resolve the dispute between the parties.
It will be open to the respondent to raise all legally permitted objections before the arbitrator including the objection relating to non arbitrability of dispute and failure of the applicant to act in terms of the arbitration clause.
Hence I propose to appoint Shri S.N. Sharma (Retd. District Judge) R/o- AH-4, Rajendra Nagar, Indore to be the learned Arbitrator for resolving the dispute. Let the declaration in terms of amended Section 12 in the prescribed form as contained in the 6th Schedule of the Act be obtained from the 3 proposed Arbitrator by the Principal Registrar of this Court within three weeks.
List on 1.3.2016.
C.C. as per rules.
(Prakash Shrivastava) Judge trilok