Calcutta High Court
M/S. S. K. Construction & Ors vs Rupa Ghosh & Ors on 4 March, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
AP No. 30 of 2008
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
M/S. S. K. CONSTRUCTION & ORS.
Versus
RUPA GHOSH & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 4th March, 2010.
Appearance:
Mr. B. K. Bachawat, Sr. Adv.
The Court : The respondents are not represented even at the
second call. The first respondent died during the pendency of the petition and by an order of May 6, 2008 the heirs of the first respondent have been brought on record.
The petitioners rely on the arbitration clause contained in the development agreement dated December 16, 2000. Clause 20.1 leaves no room for doubt that the parties agreed to go to arbitration. 2 However, the manner of appointment and the constitution of the arbitral tribunal appear to be ambiguous and inconsistent with the provisions of the Arbitration and Conciliation Act, 1996.
The petitioners have applied for a reference to arbitration and though the respondents are not represented and have not filed any affidavit in Court, a copy of an affidavit prepared on their behalf has been forwarded to the petitioners. The petitioners say that the only objection taken in the respondents' affidavit is that the entirety of the development agreement has become void.
Since it prima facie appears that there is an arbitration agreement, notwithstanding the procedure for constituting the arbitral tribunal being at variance with the provisions of the 1996 Act, the parties must be referred to arbitration in accordance with the arbitration agreement. The petitioners made a request by a letter dated June 12, 2006 for a reference and the petitioners nominated an Arbitrator and requested the respondents to nominate their Arbitrator.
In reply to the petitioners' request, the respondents denied that there was any valid agreement between the parties and claimed that the petitioners did not possess any licence and the petitioners' firm was unregistered. The respondents also suggested that the agreement was unfair.
3
Since the existence of the arbitration agreement is not in dispute, though the validity thereof has been questioned by the respondents, AP No.30 of 2008 is directed to be placed before the Hon'ble Designate of the Hon'ble The Chief Justice for constituting an arbitral tribunal to adjudicate upon the disputes between the parties covered by the arbitration agreement.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) Bp.
A.R(C.R)