Kerala High Court
Mahesh K R vs M/S Dura Build Care Private Limited on 17 February, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941
AR.No.99 OF 2019
PETITIONER/S:
MAHESH K R
S/O.K.K.RAMACHANDRAN, AUTHORIZED REPRESENTATIVE OF
M/S. TRUE BUILD INDUSTRIES, NARAYANEEYAM,
MOORIKKARA POST, KAKKODI, KOZHIKODE DISTRICT-673611
RESIDING AT NARAYANEEYAM, MOORIKKARA POST, KAKKODI,
KOZHIKODE DISTRICT-673611
BY ADVS.
SRI.M.P.ASHOK KUMAR
SRI.P.C.GOPINATH
SMT.BINDU SREEDHAR
SHRI.ASIF N
RESPONDENTS:
M/S DURA BUILD CARE PRIVATE LIMITED
501/1 DDA TOWERS-1, DISTRICT CENTRE, JANAKPURI,
NEW DELHI-110058, REP. BY ITS MANAGER DIRECTOR
RUDRA BIR GANDHI,
BY ADV. SRI.C.VIVEK
BY ADV. SMT.SREEKALA KRISHNADAS
THIS ARBITRATION REQUEST HAVING BEEN FINALLY HEARD ON
17.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AR.No.99 OF 2019 2
ORDER
This application is filed under Section 11(5) and (6) of the Arbitration and Conciliation Act, 1996 ('Act 3 of 2016' for short) seeking for an appointment of an arbitrator to resolve the disputes between the parties.
2. The applicant was the Wholesale Stockist of the respondent in the Districts of Calicut and Wayanad. He was appointed on the strength of Wholesale Stockist Agreement (WSS), a copy of which is produced as Annexure-A1. Later, disputes arose between the parties. According to the applicant, a sum of Rs.4,36,048/- is due from the respondent towards the applicant. The respondent, on the other hand, contended that a sum of Rs.3,67,07,937/- was due to them from the applicant and demanding the same, Annexure-A2 notice was issued. In response, the applicant has issued Annexure-A3 notice invoking the arbitration clause and seeking reference of the dispute to an arbitrator. However, the respondent has refused to come to an agreement for the appointment of an arbitrator to resolve the dispute.
3. A counter statement has been filed by the respondent AR.No.99 OF 2019 3 wherein it is asserted that the respondent has already approached the Additional District Judge, Dwaraka and has filed an application under Section 8 of the Act 3 of 2016. It is contended that the applicant herein has entered appearance and is contesting the matter. It is further contended that the respondent had also invoked the arbitration clause and had appointed an arbitrator on their side. However, the applicant herein has not responded.
4. Heard Sri.M.P.Ashok Kumar, the learned counsel appearing for the applicant and the counsel appearing for the respondent.
5. I have considered the submissions advanced. From Annexure A1 it is evident that the WSS agreement provides for appointment of an Arbitrator for resolution of disputes. Clause 2 of the agreement deals with arbitration which reads as follows:
"God forbid, in case of any disputes and differences arise between the two parties shall be resolved amicably, in case of not resolved amicably it shall be resolved by the Arbitrator who shall be acceptable to both the parties. In case of all the matters concerning this appointment court of New Delhi or Kozhikode shall have exclusive jurisdiction."
As held by the Apex Court in Duro Felguera S.S. v. AR.No.99 OF 2019 4 Gangavaram Port Ltd.1 in view of Section 11(6A) of the Act, the court need only look into one aspect - the existence of an arbitration agreement. All that is required to be seen is whether the agreement contains a clause which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. In that view of the matter, I am inclined to hold that this petition is to be allowed. I am therefore required to exercise my discretion under Section 11 and make an appointment of a Sole Arbitrator. The following order is passed:
(a) I nominate Sri. Asokan.K, Asoka Gardens, Thuvacode Post, Chemanchery, Kozhikode-673 304, retired District Judge as Sole Arbitrator to decide the dispute and differences between the parties arising from Annexure-A1 dated 05.09.2016.
(b) A copy of this order shall be communicated to the learned Sole Arbitrator by the Advocate of the applicant within a period of one week from today. A copy of the order shall also be forwarded to the learned Sole Arbitrator in the address shown in the list of panel of Arbitrators.
(c) The Arbitrator is requested to forward his statement of disclosure under Section 11(8) r/w. Section 12(1) of the Act 3 of 2016. The disclosure statement shall be placed before this Court for confirmation of the appointment of the Arbitrator. The Registry shall retain a copy of the original.
1 [2017 (9) SCC 729] AR.No.99 OF 2019 5
(d) The Arbitrator's fees shall be governed by the Kerala High Court (Fee Payable to Arbitrators) Rules, 2017. Both parties agree that the Arbitration costs and fees shall be shared equally.
This Arbitration Request is allowed as above.
Sd/-
RAJA VIJAYARAGHAVAN V JUDGE IAP AR.No.99 OF 2019 6 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 PHOTOCOPY OF THE AGREEMENT DATED 05.09.2016 ANNEXURE A2 PHOTOCOPY OF THE DEMAND NOTICE DATED 11.03.2019 ANNEXURE A3 PHOTOCOPY OF THE REPLY DATED 05.08.2019 BY THE RESPONDENT ANNEXURE A4 PHOTOCOPY OF THE POSTAL COVER ANNEXURE A5 PHOTOCOPY OF PLAINT FILED BEFORE THE CIVIL COURT NEW DELHI