Madras High Court
M/S.Jayaprakash Agencies vs M/S.Greenstar Fertilizers Limited on 30 April, 2019
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 30.04.2019
CORAM
THE HONOURABLE Mr.JUSTICE R. SURESH KUMAR
O.P. Diary No.30470 of 2019
M/s.Jayaprakash Agencies,
Represented by its Sole Proprietor,
Mr.D.Jayaprakash,
No.5, North Raja Street,
Thiruvallur,
Thiruvallur District. .. Petitioner
-vs-
M/s.Greenstar Fertilizers Limited,
Represented by its Managing Director,
SPIC House,
No.88, Anna Salai (Mount Road),
Guindy,
Chennai - 600 032. .. Respondent
Prayer: Petition filed under Section 11(6) of the Arbitration and
Conciliation Act, 1996, to appoint an Arbitrator to resolve the dispute
between the parties by invoking Clause 24 of Distributorship /
Delarship Agreement dated 05.01.2012 under Section 11(6) of the
Arbitration and Conciliation Act, 1996.
For Petitioner : Mr.G.Ethirajulu
For Respondent : No Appearance
http://www.judis.nic.in
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ORDER
This Original Petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 for the prayer to appoint an Arbitrator to resolve the dispute between the parties by invoking Clause 24 of Distributorship / Dealership Agreement dated 05.01.2012.
2. The learned counsel appearing for the petitioner relied upon undated and unsigned agreement called Distributorship / Dealership Agreement and submitted that, under Clause 24 of the Agreement, there is an Arbitration Clause which is invokable.
3. In this context, the learned counsel relied upon Section 7(4) of the Arbitration and Conciliation Act 1996, which reads thus:
" 7 (4) An arbitration agreement is in writing if it is contained in-
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegrams or other means of telecommunication (including communication through electronic means) which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other."
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4. By relying upon the said provision, the learned counsel pointed out the reply of the respondent to the notice issued by the petitioner on 05.02.2019 which stated the following:
"In any event, as per clause 24 of the Distributorship / Dealership Agreement dated 05.01.2012 and under Clause 22 of the Warehouse Services Agreement dated 01.07.2012 entered between the parties, the right to appoint an Arbitrator vests with our client only and your client do not have any right to initiate Arbitration Proceedings."
5. By relying upon the said communication by way of reply given by the respondent, the learned counsel for the petitioner submitted that, since the respondent himself agreed that, as per Clause 24 of the Distributorship / Dealership Agreement dated 05.01.2012, the respondent is having the right to appoint an Arbitrator, therefore he agreed that, there has been Agreement between the parties, where there is a clause for arbitration. Therefore, invoking such Clause since the respondent failed to nominate the Arbitrator, the petitioner moved to this Court by filing this Original Petition seeking indulgence of this Court, to appoint independent neutral Arbitrator to resolve the issue between the parties. http://www.judis.nic.in 4
6. I have considered the said submission made by the learned counsel for the petitioner, though, it has been mentioned by the respondent in the said reply dated 05.02.2019, stating that as per Clause 24 of the Agreement dated 05.01.2012, the respondent is having the power to appoint an Arbitrator, Distributorship / Dealership Agreement, filed before this Court, claimed to have been executed between the parties on 05.01.2012, does not contain any date, also the said Agreement seems to have been signed only by the applicant i.e., M/s.Jayapraksh Agencies and not by the respondent, where as, the Agreement states, it is entered in to between M/s.Greenstar Fertilizers Limited and the column describe the parties are empty which reads thus:
"DISTRIBUTORSHIP / DEALERSHIP AGREEMENT This Distributorship / Dealership Agreement entered in to at Chennai on this..................day of............... between M/s.Greenstar Fertlizers Limited, a Company incorporated uner the Companies Act 1956, duly represented by Mr.S.M.Pillai, Vice President - Marketing; having it Registered Office at No.5, 3rd Floor SunPlaza, 19-G.N.Chetty Road, Chennai - 600 006, hereinafter, referred to as Principal / Party of the first part and M/s...........represented by..................son of ................having its office http://www.judis.nic.in 5 at..........................hereinafter referred to as the Distributor / Dealer / Party of the second part."
7. Under Section 7(2)&(3) of the Act, it makes clear that, an Arbitration Agreement may be in the form of an Arbitration Clause in a contract or in the form of a separate Agreement. The Courts have already taken the view that, Arbitration Agreement must be in writing and signed by both parties. Though an agreement has been shown before this Court whether the said agreement have been entered into between the petitioner and the respondent cannot be culled out, as the name of the parties are not mentioned and the date of the agreement as claimed by the petitioner that the agreement was executed on 05.01.2012, also not been mentioned. Therefore, in the eye of law, i.e., in the context of Section 7(2)&(3) of the Act, it cannot be construed as a valid Arbitration Agreement in writing and signed by both parties.
9. The reply letter given by the respondent dated 05.02.2019 very much relied upon by the petitioner also does not give any support to the contention of the petitioner in the context of Sub- section 4, as in the said reply, the respondent have stated that, in the agreement dated 05.01.2012 under Clause 24, right of appointment of Arbitrator vest with the respondent.
http://www.judis.nic.in 6 R.SURESH KUMAR, J vji
10. Since there is no date mentioned in the Agreement claimed by the petitioner, it cannot also be construed that, the agreement entered between the parties, i.e., petitioner and the respondent was dated 05.01.2012, therefore, even under Sub-section 4(a) of Section 7, the contention raised by the petitioner cannot be accepted. Therefore, for all these reasons, this Court is inclined to accept the objection raised by the Registry. Accordingly, it is held that office objection is sustainable. Hence, the Registry is directed to return the papers submitted by the petitioner.
11. With these directions, this unnumbered Original Petition is rejected.
30.04.2019 vji Index:Yes / No Speaking / Non speaking order O.P. Diary No.30470 of 2019 http://www.judis.nic.in