Bombay High Court
Moongipa Realty Private Limited ... vs D. N. Nagar Navratna Co-Operative ... on 1 March, 2022
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
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Prajakta Vartak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION APPLICATION (L.) NO.31026 OF 2021
Moongipa Realty Pvt. Ltd. ..Applicant
Vs.
D.N. Nagar Navratna Co-op.
Hsg. Soc. Ltd. ..Respondent
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Mr. Dhiren Shah with Miloni Gala i/b. Dhiren Shah for Applicant.
Ms. Rita Joshi with Mr. Swapnil Kamble for Respondent.
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CORAM : G.S. KULKARNI, J.
DATE : MARCH 01, 2022.
P.C.:
1. This is a petition filed under Section 11 of the Arbitration and
Conciliation Act, 1996 (for short, "the Act") whereby the applicant, who
is a developer appointed by the respondent under a Development
Agreement dated 26 December, 2007 and the Supplementary Agreement
dated 11 May, 2010, executed between the respondent and the
petitioner, is before the Court praying that an arbitral tribunal be
appointed to adjudicate the disputes and differences between the parties
as arising under these agreements. The arbitration agreement is
contained in clause 49. There is no dispute on the existence of the
arbitration agreement.
2. By a notice dated 22 November, 2021, the applicant had invoked
the arbitration agreement and called upon the respondent to refer the
disputes to be adjudicated by the arbitral tribunal. As there was no
consensus in appointing an arbitral tribunal, the present application
came to be filed.
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3. This application was listed on four earlier four occasions. The
parties attempted to settle the disputes. The settlement talks however
failed. Mr. Shah, learned counsel for the applicant submits,
although settlement could not be brought about it may ultimately
happen before the arbitral tribunal.
4. In the above circumstances, as there is no dispute in regard to the
existence of the arbitration agreement and considering the invocation
notice dated 22 November, 2021 and the fact that there was no
consensus between the parties in appointing an arbitral tribunal, this
Court would require to exercise its jurisdiction under Section 11 of the
Act to appoint an arbitral tribunal. Mr. Joshi, learned counsel for the
respondent also fairly accepts this position.
5. In the above circumstances, the application is disposed of by the
following order:-
ORDER
(i) Mr. Anoshak Daver, Advocate of this Court is appointed as a sole Arbitrator to arbitrate the disputes and differences between the parties arising under the Development Agreement dated 26 December, 2007 and the Supplementary Agreement dated 11 May, 2010;
(ii) The learned sole arbitrator, before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application with a copy to be issued to both the parties;
(iii) At the first instance, the parties shall appear before the prospective arbitrator within 15 days at time which may be mutually fixed by the prospective sole arbitrator;
(iv) All contentions of the parties including on merits of the matter ::: Uploaded on - 03/03/2022 ::: Downloaded on - 03/03/2022 22:12:23 ::: 3 3-carapl 31026-21.odt are expressly kept open;
(v) The fees payable to the arbitral tribunal shall be the fees as prescribed under the Bombay High Court (Fees payable to arbitrators) Rules,2018;
(vi) The application is disposed of in the above terms. No costs
(vii) Office to forward a copy of this order to the learned Arbitrator on the following address:
Mr.Anoshak Daver, Advocate Add.: 46-C, Prospect Chambers, Annex, Pitha Street, Mumbai 400021.
Mobile: 9833098777 E-mail: [email protected] [G.S. KULKARNI, J.] ::: Uploaded on - 03/03/2022 ::: Downloaded on - 03/03/2022 22:12:23 :::