Calcutta High Court
Bholanath Rajpati Shukla vs Airport Authority Of India & Anr on 20 February, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
ORDER SHEET
AP NO. 837/2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BHOLANATH RAJPATI SHUKLA
Versus
AIRPORT AUTHORITY OF INDIA & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
Date : 20th February, 2019.
Mr.Krishnaraj Thaker,
Mr.Souvik Majumdar,
Mr.Abhishek Banerjee, Advs., for the
petitioner.
Mr.Probal Kumar Mukherjee,
Mr.Suhrid Sur, Advs., for the
respondent.
The Court : This arbitration petition is for appointment of arbitrator. Mr. Thaker, learned advocate appears on behalf of petitioner and submits, agreement dated 5th March, 2018 between parties contained arbitration agreement by clause 27 therein. Said clause is reproduced below :
"All disputes and differences arising out of or in any way touching or concerning this Agreement (except those the decision whereof is otherwise herein before expressly provided for or to which the Public Premises [Eviction of Unauthorised Occupants] Act and the rules framed thereunder which are now enforced or which may hereafter come into force 2 are applicable), shall, in the first instance, be referred to a Dispute Resolution Committee (DRC) set up at the airports, for which a written application should be obtained from the party and the points clearly spelt out. In case the dispute is not resolved within 45 days of reference, then the case shall be referred to the sole arbitration of a person to be appointed by the Chairman/Member of the Authority. The award of the arbitrator so appointed shall be final and binding on the parties. The Arbitration and Conciliation Act, 1996 shall be applicable. Once the arbitration clause has been invoked, the DRC process will cease to be operative.
a) The case shall be referred to the Sole Arbitrator by the Chairman/Member of the Authority subject to the condition that the licensee shall have to deposit the disputed amount with AAI as condition precedent before making reference to the Arbitration for adjudication of dispute.
b) Similarly, before making a reference to Dispute Resolution Committee, the licensee will have to first deposit the disputed amount with AAI and give consent for acceptance of the recommendations of the Dispute Resolution Committee.
c) It will be no bar that the Arbitrator appointed as aforesaid is or has been an employee of the Authority and the appointment of the Arbitrator will not be challenged or be open to question in any Court of Law, on this account
d) The licensee(s) shall undertake to pay the full amount of license fee/dues regularly as per the award/agreement and perform all the covenants of the agreement even he/they have requested for appointment of Arbitrator 3 and/or during the course of arbitral proceedings or Dispute Resolution Proceedings".
He submits, his client submitted to procedure for resolution of disputes by Dispute Resolution Committee. There being no resolution his client by letter dated 6th October, 2018 nominated his arbitrator and requested respondents to nominate their nominee, failing which he would move Court. According to Mr. Thaker, examination of Court being confined to only existence of arbitration agreement on disputes arisen for reference, the agreement being undisputed, there should be necessary measure of appointment of arbitrator.
Mr. Mukherjee, learned senior advocate appears on behalf of respondents. He submits, part of agreed procedure for appointment of arbitrator requires petitioner to deposit disputed amount with his clients. He refers to paragraph 4 of affidavit-in-opposition used by his client, to demonstrate that an amount of Rs.2,08,78,685/- and interest accrued thereon is to be deposited by petitioner before reference of dispute. He opposes any measure being taken by Court for appointment of arbitrator on fact of petitioner not having deposited.
Arbitration agreement between parties has been reproduced above. Sub-section (6A) in section 11 requires Court, while considering any application, in this case made under sub-section (6), to confine examination by it to existence of arbitration 4 agreement. The arbitration agreement is not disputed. Working of it as precondition for reference appears to be beyond scope of section 11 in the Act when provisions therein stand attracted. Respondents can always apply to arbitral tribunal for interim measure or lodge counterclaim.
Mr. Bimal Kumar Chatterjee, senior advocate of Bar Library Club is appointed arbitrator. Arbitrator is free to fix his fees. Parties will bear remuneration and costs of arbitration in equal share.
This arbitration petition is, thus, disposed of.
(ARINDAM SINHA, J.) S.Das AR[CR]