Bombay High Court
M/S. Ajmera Habitat Pvt. Ltd vs Jidnyasa Co-Operatvie Housing Society ... on 9 August, 2016
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
arbp83-14
vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION PETITION NO.83 OF 2014
M/s.Ajmera Habitat Pvt. Ltd. )
A private Limited Company incorporated )
and registered under the provisions of )
Companies Act, 1956 and having its )
registered office at - )
Citi Mall, 2nd Floor, Link Road, )
Andheri (West) ,Mumbai - 400 053. ) ...Petitioner
....Versus....
Jidnyasa Co-operative Housing Society )
Limited, A Co-operative Housing Society )
classified as Housing Society registered )
under the provisions of the Maharashtra )
Co-operative Societies, Act, 1960 and )
having its address at - Khidkali-Desai, )
Post Padale, Taluka and district Thane )
)
AND HAVING ITS OFFICE AT )
)
Summons to be served on )
Shop No.1, Trimbakeshwar Society )
Ground Floor, Opp. Ashwini Motors, )
Edulji Road, Charai, Thane ( W) - 400 601 ) ...Respondent
Mr.A. Kumbhakoni, Senior Counsel with Mr.Shardul Singh i/b
Mr.Vaibhav Gaikwad for the Petitioner.
Mr.R.P. Mudholkar for the Respondent.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 28TH JULY, 2016
PRONOUNCED ON : 9TH AUGUST, 2016
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ORAL JUDGMENT :-
1. By this petition filed under section 11(6) of the Arbitration & Conciliation Act, 1996 (for short "the Arbitration Act"), the petitioner seeks appointment of an independent person as a sole arbitrator to adjudicate upon all the disputes and differences between the parties arising out of the Development Agreement dated 26 th September, 2014. Some of the relevant facts for the purpose of deciding this arbitration petition are as under :
2. On 26th September, 2014, the petitioner and the respondent entered into a Development Agreement in respect of the property situated at village Khidkali on the terms and conditions recorded therein. Clause 16 of the said Development Agreement provided for arbitration agreement.
3. The dispute arose between the parties. The petitioner issued a notice on 1st November, 2014 to the respondent and invoked the arbitration agreement recorded in the Development Agreement and suggested three names of the retired Judges of this Court and called upon the respondent to give consent to one of the name suggested by the petitioner and threatened to take appropriate legal steps if the respondent did not consent to one of the such name for the appointment as a sole arbitrator.
4. The respondent through its advocate's reply dated 14 th 2/6 ::: Uploaded on - 09/08/2016 ::: Downloaded on - 10/08/2016 00:44:35 ::: arbp83-14 November, 2014 refused to appoint any arbitrator. The petitioner thus filed this petition under section 11(6) of the Arbitration Act on 3rd December, 2014.
5. The arbitration petition is opposed by the respondent by filing affidavit in reply dated 23rd January, 2015.
6. Mr.Kumbhakoni, learned senior counsel appearing for the petitioner invited my attention to the Development Agreement entered into between the parties, including the arbitration agreement recorded therein and also the notice issued by the petitioner invoking the arbitration agreement and the reply sent by the society to the said letter invoking arbitration agreement. He submits that the respondent has not disputed the existence of the arbitration agreement but has refused to appoint an arbitrator on various grounds on the merits of the claim proposed to be made by the petitioner. He submits that this Court cannot adjudicate upon the merits of the claim proposed to be made by the petitioner.
7. Mr.Mudholkar, learned counsel for the respondent on the other hand submits that the Development Agreement dated 26th September, 2014 relied upon by the petitioner is an unregistered document and is not binding upon the respondent. He submits that the sister concern of the petitioner i.e. M/s.Amisha Buildcon Private Limited had also filed an application under section 9 of the Arbitration 3/6 ::: Uploaded on - 09/08/2016 ::: Downloaded on - 10/08/2016 00:44:35 ::: arbp83-14 Act and has also filed a separate application under section 11(6) of the Arbitration Act for the appointment of an arbitrator. He submits that the respondent has already terminated all the agreements between the said M/s.Amisha Buildcon Private Limited and also with the petitioner herein. No arbitrator thus can be appointed by this Court.
8. A perusal of the Development Agreement entered into between the parties clearly indicates that the arbitration agreement is recorded in clause 16 of the said Development Agreement. The petitioner had issued a notice invoking the said arbitration agreement on 1st November, 2014. The respondent had replied to the said notice on 14th November, 2014 through its advocate, denying the requisition made by the petitioner. A perusal of the said reply indicates that the execution of the arbitration agreement is not disputed by the respondent.
9. A perusal of the affidavit in reply filed by the respondent also indicates that the respondent has not disputed the existence of the arbitration agreement entered into between the parties and more particularly in the said Development Agreement dated 26 th September, 2014. It is however, contended by the respondent that the said Development Agreement dated 26th September, 2014 is not a registered document and thus cannot be relied upon or is not 4/6 ::: Uploaded on - 09/08/2016 ::: Downloaded on - 10/08/2016 00:44:35 ::: arbp83-14 binding upon the respondent society. In my view, even if this Development Agreement is not a registered document, the arbitration agreement recorded therein can still be relied upon being a separate, distinct and independent agreement. The validity of the agreement can be decided by the learned arbitrator on its own merits.
10. Insofar as the submission of the learned counsel for the respondent that the said Development Agreement is not binding upon the society is concerned, the validity of the said agreement can be decided by the learned arbitrator on its own merits. The said issue is kept open.
11. In my view, since the arbitration agreement exists between the parties and since the respondent has refused to agree on any name suggested by the petitioner or has not suggested any other name of the arbitrator, arbitration petition filed under section 11(6) of the Arbitration Act filed by the petitioner is maintainable. This Court has power to appoint an independent arbitrator under section 11(6) of the Arbitration Act.
12. I propose to appoint Shri Justice Pramod D. Kode, former Judge of this Court, having his office at 204, Vardhaman Chambers, Cawasji Patel Street, Opposite Punjabi Moti Halvai, Fort, Mumbai -
400 001, Mob. No.99691 01100 and Office No.022 2204 0976 as a sole arbitrator, who is required to file a statement of disclosure in 5/6 ::: Uploaded on - 09/08/2016 ::: Downloaded on - 10/08/2016 00:44:36 ::: arbp83-14 terms of section 11(8) read with section 12(1) of the Arbitration Act before the next date.
13. The parties are directed to convey this order to the learned proposed arbitrator with a request to file statement of disclosure in terms of section 11(8) read with section 12(1) of the Arbitration Act before the next date.
14. Place the arbitration petition on board on 18th August, 2016 for directions.
15. All parties as well as the learned proposed arbitrator to act on the authenticated copy of this order.
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