Madras High Court
Texmex Cuisine India Private Limited vs Express Infrastructure Private ... on 3 February, 2022
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
Arb.O.P.(Comm.Div.) No.312 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2022
CORAM
THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY
Arbitration Original Petition (Comm. Div.) No.312 of 2021
Texmex Cuisine India Private Limited
Represented by its Director
Deepinder Singh Bharath
Having its registered office at
Bharti Crescent, 1 Nelson Mandela Road,
Vasant Kunj, Phase II, Delhi 110 070. ... Petitioner
Vs.
Express Infrastructure Private Limited
Represented by its Managing Director
Having its Registered Office at
Express Estates, No.2, Club House Road,
Mount Road (Anna Salai), Chennai – 600 002. ... Respondent
Prayer : Original Petition filed under Section 11(6) of Arbitration & Conciliation
Act, 1996, to appoint a sole Arbitrator to enter reference relating to the disputes that
has arisen between the parties herein and conduct Arbitration Proceedings.
For Petitioner : Mr.R.Venkat Raman
for M/s.Tatva Legal Chennai
For Respondent : Mr.G.Vijayakumar
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https://www.mhc.tn.gov.in/judis
Arb.O.P.(Comm.Div.) No.312 of 2021
ORDER
The petitioner seeks constitution of an arbitral tribunal to adjudicate the dispute between the petitioner and the respondent herein.
2.The petitioner entered into a Leave and Licence Agreement, dated 28.12.2015, to take on licence premises of a super built-up area of 5447 sq.ft. on the Third Floor, Food Court of Express Avenue. Several ancillary agreements were also entered into between the parties in relation thereto. Subsequently, a dispute arose between the parties with regard to the refund of the security deposit as also a portion of the licence fee for a specific period. Therefore, the petitioner issued a notice, dated 24.08.2021, calling upon the respondent to pay the sum demanded therein. Eventually, by notice dated 05.10.2021, the petitioner invoked the arbitration clause. Since the petitioner and the respondent could not arrive at a consensus in relation to the choice of sole arbitrator, the present petition is filed.
3.As indicated above, both parties agree that there is an arbitration agreement governing the dispute between the parties. The relevant arbitration clause is set out below :
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https://www.mhc.tn.gov.in/judis Arb.O.P.(Comm.Div.) No.312 of 2021 “36. DISPUTE RESOLUTION MECHANISM:
36.1. Any and/ or all disputes or differences between the Parties arising from and out of this Agreement and Allied Agreement shall be first informed in writing to the other Party and shall be discussed so as to be settled amicably. In the event of any failure to resolve the disputes or differences amicably within 10 days from the date of notification in writing of the existence of the dispute/difference, such unresolved dispute/difference shall be settled through Arbitration. The arbitration proceedings shall be conducted in English. The venue of arbitration shall be at Chennai.
36.2. The Licensor and the Licensee agree that the dispute shall be settled through Arbitration by a sole Arbitrator to be appointed as follows:
36.2. l. Within 7 days of the expiry of the period mentioned in clause 36.1, the Licensor shall provide the Licensee with a list of three Retired High Court Judges whom it intends to be nominated as the Sole Arbitrator;
36.2.2. Within 10 days from the receipt of the above letter, the Licensee shall choose one among the three Retired High Court Judges. Once the Licensee chooses a Retired High Court Judges from among the list provided by the Licensor, then he / she shall become the Sole Arbitrator;Page 3/6
https://www.mhc.tn.gov.in/judis Arb.O.P.(Comm.Div.) No.312 of 2021 36.2.3. However, if the Licensee fails to choose the Sole Arbitrator from among the list of three Retired High Court Judges within the period stated in clause 36.2.2, then the Licensor may nominate any of the three Retired High Court Judges as the Sole Arbitrator and the Licensee shall have no objection to the same.
36.3. The reference to the arbitration shall be without prejudice to the rights of the Licensor to recover any dues from the Licensee.”
4.Upon perusal thereof, it is clear that parties have agreed to resolve the disputes through arbitration, and that the venue of arbitration is Chennai. Although the arbitration clause provides for the constitution of an arbitral tribunal from and out of a list of three retired High Court Judges proposed by the licensor, the parties were unable to arrive at a consensus. The present petition is filed for such limited purpose. Therefore, it is just and necessary to exercise powers under Section 11 to constitute such tribunal.
5.Accordingly, Arbitration Original Petition (Comm. Div.) No.312 of 2021 is allowed by appointing Mr. Justice G.Rajasuria, retired Judge of this Court, No.31, III Page 4/6 https://www.mhc.tn.gov.in/judis Arb.O.P.(Comm.Div.) No.312 of 2021 Cross, Brindavanam, Puducherry(Mobile No.94457 11199) as the sole Arbitrator. The sole Arbitrator is directed to enter upon reference and adjudicate the dispute in accordance with law. It will be open to the sole Arbitrator to fix fees and expenses in relation to the arbitral proceedings.
03.02.2022 mkn Internet : Yes Index : Yes / No Page 5/6 https://www.mhc.tn.gov.in/judis Arb.O.P.(Comm.Div.) No.312 of 2021 SENTHILKUMAR RAMAMOORTHY, J.
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