Jammu & Kashmir High Court
Bsf Welfare Housing Cooperative Ltd vs Jagdev Singh on 20 February, 2020
Author: Chief Justice
Bench: Chief Justice
Sr. No. 3
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Arb P No. 41/2019
BSF Welfare Housing Cooperative Ltd. ...Applicant/Petitioner(s)
Through :- Mr. Rakesh Sharma, Advocate.
V/s
Jagdev Singh .....Respondent(s)
Through :- None.
Coram: HON'BLE THE CHIEF JUSTICE
ORDER
01. The instant petition has been filed under Section 11(6) of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, with a prayer for appointment of an arbitrator to arbitrate on the disputes arisen between the parties.
02. Notices were issued by registered cover to the respondent on 26 th August 2019. Additionally, dasti notice was also given to the petitioner for effecting service. Dasti notice stands served on the respondent and an affidavit of service accompanied by copy of the notice duly received by the respondent has been placed on record.
03. The respondent has not cared to put in appearance on 16 th September 2019 with the matter was listed nor thereafter. He is also not present today. No reply has been filed. There is, therefore, no opposition to the petition. 2
04. The petitioner has placed on record an agreement dated 31 st July 2014 entered into between the petitioner and the respondent with regard to purchase of land. The petitioner has stated that this agreement was extended by another agreement dated 16th November 2019. Pursuant to said agreement, the petitioner claims to have paid an amount of ₹ 9,01,70,555/- to the respondent in respect of the land as detailed in para-6 of the petition. However, the respondent has not fulfilled his commitments and has violated the agreement with impunity. Disputes have, therefore, arisen between the parties with regard to which the petitioner has even lodged a police compliant.
05. Learned counsel for the petitioner has placed before me an arbitration agreement entered into between the parties contained in Clause 15 of the agreement dated 31st July 2014 which reads thus:
"That in case of any kind of dispute between the Parties, the same should be referred to the Panel of Arbitrators as appointed by both the parties and their decision shall be final and binding on both the parties."
06. It appears that the respondent had himself served a legal notice dated 18th December 2017 invoking Clause 15 of the Agreement and sought appointment of an arbitrator for settlement of the disputes which had arisen between the parties. This notice was responded on behalf of the petitioner by a counter notice calling upon the respondent to nominate one arbitrator from his side within fifteen days from the receipt of notice.
07. I am informed that the respondent had also filed a petition under Section 9 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, seeking interim orders against the petitioner from using the construction material, electric poles etc. lying on the site at Village Marjali, Tehsil Bhalwal, 3 District Jammu. This petition was dismissed by the Ist Additional District and Sessions Judge, Jammu, by an order dated 17th January 2019.
08. The instant petition has been filed under Section 11 of the Jammu and Kashmir Arbitration and Conciliation Act, 1997, on 1 st August 2019 long after expiry of 30 days period after serving the request upon the respondent for nomination of the arbitrator. In view of the Jammu and Kashmir Reorganization Act, 2019, the Central Arbitration and Conciliation Act, 1996, is applicable to the present proceedings.
In view thereof, there is no impediment to the grant of the prayer made in this petition.
09. It is , therefore, directed as follows:
i) The disputes between the parties are referred to Sh. Kartar Singh, Retired District & Sessions Judge, who shall arbitrate the matter in accordance with the schedule to the Arbitration and Conciliation Act, 1996.
ii) The parties shall be at liberty to file detailed claims and counter claims before the learned Arbitrator.
iii) The arbitrator shall render his award within the prescribed statutory period.
iv) The arbitrator shall be entitled to fix his own fee in terms of the Schedule to the Central Arbitration and Conciliation Act, 1996.
v) The arbitrator shall also be entitled to all incidental expenses which shall be incurred by the petitioner. The fee and the expenses shall be paid by the petitioner at the first 4 instance. The same shall form part of the costs which are finally awarded by the Arbitrator.
This arbitration petition is accordingly allowed.
(GITA MITTAL) CHIEF JUSTICE Jammu 20.02.2020 Sunita SUNITA KOUL 2020.02.24 11:00 I attest to the accuracy and integrity of this document