Gauhati High Court
Kanti Das vs Kishan Agencies Private Limited And Anr on 27 January, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/4
GAHC010033112024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Arb.P./5/2024
KANTI DAS
SOLE PROPRIETOR OF M/S SUMMER 88 PVT. LTD., R/O- AZARA,
KONAPARA, DIST. KAMRUP(M), ASSAM, PIN- 781017.
VERSUS
KISHAN AGENCIES PRIVATE LIMITED AND ANR
REP. BY ITS DIRECTOR MR. RISHABH HIMATSINKA, REGISTERED OFFICE
AT P.P.-101, NAZRUL ISLAM AVENUE, KRISHNAPUR, KOLKATA, WEST
BENGAL, PIN- 700059.
2:RISHABH HIMATSINKA
P.P.-101
NAZRUL ISLAM AVENUE
KRISHNAPUR
KOLKATA
WEST BENGAL
PIN- 700059
LOCAL CORRESPONDENCE ADDRESS- ORIENTAL BISTO RESTURANT
1ST FLOOR ADITYAM BUILDING
G.S. ROAD
BEHIND KFC ULUBARI
LACHIT NAGAR
GUWAHATI
DIST. KAMRUP(M)
ASSAM
PIN- 781007
Advocate for the Petitioner : SONESWAR SAIKIA, MR. S SAIKIA,MR U DAS
Advocate for the Respondent : MS G DEKA (r-1,2), MS. K KALITA (r-1,2)
Page No.# 2/4
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 27.01.2025 Heard Mr. S. Saikia, learned counsel for the petitioner. Also heard Ms. G. Deka, learned counsel for the respondent nos. 1 & 2.
This application filed under Section 11 of the Arbitration and Conciliation Act, 1996.
The petitioner and the respondents entered into an agreement being a deed of assignment executed on 15.06.2023 whereby the 'assignor' who was operating the restaurant business under the brand name 'Oriental Bistro' was approached by the assignee to hire its rights for operating the said restaurant business including the right to use theExcise License etc. There are several other terms and conditions in the agreement. Clause no. 9 contains an arbitration clause which prescribes that in the event of any disputes arise between the parties and if the disputes are not resolved through consultations, either of the party may by notice in writing refer dispute to a sole arbitrator to be appointed by the parties mutually. According to the petitioner, disputes arose between the petitioner and the respondent while operating the business and accordingly a notice dated 02.11.2023 was issued by the petitioner to the respondents referring to the disputes calling upon the respondent to refer the matter to the sole arbitrator in terms of Clause 9 of the deed of assignment dated 27.06.2023.
It is submitted that the notice was issued to the respondents by registered post and the same was duly receipt by the respondents.
After notice was issued in the matter, respondents were represented by Page No.# 3/4 their respective counsels and contested the claim of the petitioner by filing their objections.
However, there is no dispute that the notice dated 02.11.2023 issued by the petitioner was not received by the respondents.
The learned counsel for the parties have been heard. Pleadings available on the record have been carefully perused.
There is no dispute that an agreement was executed by and between the petitioner and the respondents and the said agreement namely the deed of assignment was executed on 27.06.2023 by the petitioner and the respondents amongst others contains an Arbitration Clause at Clause 9 which prescribes reference to a sole arbitrator to be appointed by the parties mutually, in the event of any dispute arises.
Perusal of the pleadings reflects that there is a dispute which is arisen between the parties. A notice as required under Section 21 of the Act also was issued by the petitioner and the respondents did not dispute the receipt of the said notice issued by the petitioner for appointment of a sole arbitrator. The respondents however did not respond to the notice issued by the petitioner. Therefore, under the provision of Section 11 of the Arbitration and Conciliation Act, 1996, this application has been filed.
Taking into consideration the rival contentions and the pleadings available on record, this Court is of the considered view that there is a valid arbitration agreement existing between the petitioner and the respondents and the said agreement is not disputed by the respondents. The notice as required under Section 21 has also been issued to which the respondents did not respond to, although they acknowledged the receipt of the same.
Under such circumstances, this Court under the powers conferred under Page No.# 4/4 Section 11(6) considered this to be a fit case for appointment of an arbitrator.
This Court in terms of the notification No. 29 dated 21.05.2024 issued by the Registrar General, Gauhati High Court hereby appoint Mr. Justice H.N. Sarmah, former Justice of Gauhati High Court to act as a sole arbitrator to arbitrate on the dispute between the petitioner and the respondents.
The parties before this Court will appraise the prospective arbitrator of the appointment sought to be made by this court under Section 11(6) of the Arbitration and Conciliation Act, 1996. The appointment of the prospective learned arbitrator will be confirmed upon receipt of written declaration as required under Section 12(5) of the Arbitration and the Conciliation Act, 1996 to be furnished by the prospective arbitrator.
The copy of this order be placed before the prospective arbitrator within 2(two) weeks from today.
The prospective learned arbitrator will furnished the written declaration as required under Section 12(5) and the same shall be placed before the Court on the next date fixed.
The learned counsel will appraise the Court along with a certified copy of this order to apprise the prospective arbitrator.
List this matter again on 28.02.2025.
JUDGE Comparing Assistant