Bombay High Court
Sustainable Agro-Commercial Finance ... vs Rajendra Govindrao Vabale And 2 Ors on 17 July, 2019
Author: G.S. Kulkarni
Bench: G.S. Kulkarni
1 907-arbapl 236-19
psv
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION (L.) NO.236 OF 2019
Sustainable Agro-commercial Finance Limited ..Applicant
Vs.
Rajendra Govindrao Vabale & Ors. ..Respondents
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Mr.Yashpal Thakur for Applicant.
None for Respondents.
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CORAM : G.S. KULKARNI, J.
DATE : 17th JULY, 2019
P.C.:
1. Heard learned Counsel for the applicant.
2. An affidavit of service is placed on record on behalf of the
applicant. It records that respondents refused to accept the letter and
documents. None appears for the respondents. Accordingly, the
application is taken up for hearing.
3. This is an application under Section 11 of the Arbitration and
Conciliation Act, 1996 (for short, "the ACA") whereby the applicant has
prayed for appointment of an arbitral tribunal for adjudication of the
disputes which are stated to have arisen between the parties under the
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loan cum hypothecation agreement dated 1 August 2015. Clause 27 of
the said agreement is the arbitration agreement between the parties
which reads thus:-
"27. Dispute Resolution: In the event of any dispute or
controversy that may arise from or relating to the
remittance, operations or from the interpretation or
implementation of this Agreement, the parties hereto
undertake to first endeavour to resolve such dispute or
controversy amicably through conciliation, within thirty (30)
days from the date when such dispute or controversy arises.
Unresolved disputes arising out of or relating to this
agreement or the arrangement agreed to herein shall be
referred to arbitration of a Sole Arbitrator jointly appointed
by both the parties. The place of arbitration proceedings
shall be at Mumbai and proceedings to be conducted in
English. The proceedings shall be conducted in accordance
with the Indian Arbitration and Conciliation Act, 1996 as
amended from time to time. The Award of the Arbitrator
shall be final and binding on both the parties. Parties to
bare the respective cost and cost of the arbitration
proceedings shall be shared."
4. The case of the applicant is that a term loan facility in the sum of
Rs.4,93,000/- was disbursed to the respondents as set out in more detail
in the body of the application. The respondents consistently defaulted
in making payment of the installments of the said financial facility as
made available by the applicant. The applicant accordingly issued a
notice dated 21 July 2018 invoking the arbitration agreement and
called upon the respondents to appoint a sole arbitrator to adjudicate
the disputes between the parties. This notice was returned by the postal
authority with the remark "Intimation Unclaimed", however the
respondents did not confirm and/or concur in the appointment of the
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Sole Arbitrator. Accordingly, the present application has been filed by
the applicant praying for appointment of an arbitral tribunal.
5. Having heard learned Counsel for the applicant and having
perused the record, it is quite clear that the respondents were
beneficiaries of the loan facility made available by the applicant. Under
clause 28 of the said agreement, the parties have agreed for disputes
being referred to an arbitral tribunal under the said agreement. It is also
on record that the applicant by the notice dated 21 July 2018 invoked
the arbitration agreement and sought reference of the disputes. All the
averments which are made in the petition are required to be treated as
admitted as they are not controverted by the respondents.
6. In the above circumstances, the application is required to be
allowed. Hence, the following order:-
ORDER
(i) Colonel D.K. Bishnoi, Advocate of this Court, is appointed as a sole Arbitrator to arbitrate the disputes and differences between the parties under the loan cum hypothecation agreement dated 1 August 2015;
(ii) The learned sole prospective arbitrator, fifteen days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary ::: Uploaded on - 19/07/2019 ::: Downloaded on - 19/07/2019 22:36:15 ::: 4 907-arbapl 236-19 & Senior Master of this Court, to be placed on record of this application with a copy to be forwarded to both the parties;
(iii) At the first instance, the parties shall appear before the prospective arbitrator within 10 days from today on a date which may be mutually fixed by the prospective sole arbitrator;
(iv) All contentions of the parties on merits of the matter are expressly kept open;
(v) The fees payable to the arbitral tribunal shall be in accordance with the Bombay High Court (Fee Payable to the Arbitrators) Rules, 2018;
(vi) The application is disposed of in the above terms. No costs.
(vii) Office to forward a copy of this order to the learned Arbitrator on the following address:
"Chamber No.10, Oriental Business Centre, Rajabahadur Mansion, Ambalal Doshi Marg, Near Bombay Stock Exchange (BSE), Fort, Mumbai - 400 001.
Mob.: 9370166350 / 7045199859 E-mail: [email protected]"
[G.S. KULKARNI, J.] ::: Uploaded on - 19/07/2019 ::: Downloaded on - 19/07/2019 22:36:15 :::