Calcutta High Court
_ vs Azizuddin & Ors on 26 November, 2009
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
AP No. 555 of 2008
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
IN THE MATTER OF :_
ANWAR HUSSAIN
Versus
AZIZUDDIN & ORS.
BEFORE:
The Hon'ble JUSTICE GIRISH CHANDRA GUPTA
Date : 26th November, 2009.
Mr.Swapan Kumar Mallick,
Adv., for the petitioner.
Mr.Arindam Banerjee, Adv.,
for the respondents.
The Court : The arbitration agreement entered into between the parties reads as follows :-
"All disputes and differences
between the parties hereto concerning or
relating to the said or arising out of and/or touching this agreement and/or with regard to the interpretation of all or any of the clause herein contained shall be referred to the Joint Arbitration of Mr.Md.Farhauddin, Advocate, High Court, 10, Kiron Sankar Roy Road, Calcutta-700 001 and Mr.Ranjit Mohan Rakshit, Advocate, City Civil Court, Calcutta and whose Award shall be binding on the Owners and the Developer/Promoter and the provisions 2 of the Indian Arbitration and Conciliation Act, 1996 shall apply".
After the disputes and differences arose the petitioner wrote to the named Arbitrators by a letter dated 10th April, 2008 asking them to enter upon the reference. The letter was duly served as is evidenced by the acknowledgment due cards annexed to the petition. The Arbitrators did not respond. Accordingly, a further letter dated 22nd May, 2008 was written to them and served under registered cover. In spite thereof, they did not respond. The petitioner has, in fact, come up with a prayer for appointment of an Arbitrator.
Mr.Banerjee, learned Advocate appearing for the respondents, did not dispute the fact that there are disputes and differences between the parties. He submitted that in order to seek redressal of the grievance which the respondents had against the petitioner the consumer forum has already been approached. He submitted that such an approach was permitted in the case of Skypak Couriers Ltd.
-Vs- Tata Chemicals Ltd., reported in AIR 2000 SC 2008 wherein the following view was expressed :-
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar to the 3 entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force".
The judgment in the case of Skypak Couriers Ltd (supra) was necessitated because the commission had referred the disputes to be adjudicated by the Arbitrators and thereafter on the basis of the award the commission was passing orders. It is the legality of this practice and procedure which was under challenge before the Apex Court and Their Lordships held that this was not permissible. The Commission was exercising power under the law and that power could not have been relegated to an Arbitrator. Therefore, this judgment, in my view, does not lend any assistance in deciding this application.
I have already noticed the arbitration clause which shows that the parties contemplated that the disputes shall be referred to Joint Arbitrators. Mr. Banerjee did not dispute that there cannot be even number of arbitrators under Section 10 of the Arbitration and Conciliation Act 1996, which was, in fact, done by the parties. Therefore, I am of the opinion, that the disputes should be resolved by a Sole Arbitrator. No other objection was 4 raised by Mr. Banerjee. Accordingly, this matter is relegated to the Hon'ble the Acting Chief Justice for naming a Sole Arbitrator.
Urgent xerox certified copy of this order be supplied by the department within seven days to the learned Advocates appearing for the parties upon compliance with the necessary formalities.
(GIRISH CHANDRA GUPTA, J.) sd/snn.
A.R.(CR)