Gujarat High Court
Akash Computers vs The Director, (Trg) Directorate Of ... on 22 April, 2022
Author: Aravind Kumar
Bench: Aravind Kumar
C/IAAP/5/2020 ORDER DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/PETN. UNDER ARBITRATION ACT NO. 5 of 2020
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of
2022
In
R/PETN. UNDER ARBITRATION ACT NO. 5 of 2020
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AKASH COMPUTERS
Versus
THE DIRECTOR, (TRG) DIRECTORATE OF EMPLOYMENT AND
TRAINING
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Appearance:
MR TARAK DAMANI(6089) for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
Date : 22/04/2022
ORAL ORDER
1. Civil Application No.1 of 2022 stands rejected.
2. This petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking for appointment of Sole Arbitrator. The respondent had notified for selection of qualified and competent vocational training provider for taking up skill development training programme on the behalf of the respondent under skill development initiative scheme. The petitioner and the respondent entered into and executed an agreement dated 12.8.2014 for a period of two years. The Page 1 of 5 Downloaded on : Tue Apr 26 20:49:32 IST 2022 C/IAAP/5/2020 ORDER DATED: 22/04/2022 petitioner said to have acted and started providing and imparting skill development training as required to be provided under the agreement. A show cause notice dated 12.2.2015 came to be served to the petitioner by the respondent alleging breach of regulations of SDI Operational Manual and describing breach as collection of fees by giving wrong information qua the telephone numbers / contact numbers of the trainee. Detailed reply was filed and after considering the same, the respondent by communication dated 25.3.2015 has de-registered and cancelled the registration of the petitioner's vocational training provider registration. Several representations were said to have been made by the petitioner to the respondent to review and reconsider its decision on the ground of lack of opportunity. Petitioner is said to have made a claim to the respondent for payment of Rs.47,63,175/- towards wrongful cancellation and de-registration of VTP and towards unpaid bills. Same having refuted by the respondent by communication dated 5.5.2018, petitioner has invoked the arbitration clause of the agreement dated 12.8.2014 which provides for resolution of dispute through arbitration. The said clause of the agreement dated 12.8.2014 reads thus:
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C/IAAP/5/2020 ORDER DATED: 22/04/2022 "5. ARBITRATION: IN THE EVENT OF ANY DISPUTE OR DIFFERENCE RELATING TO THIS AGREEMENT BETWEEN THE PARTIES HERETO, SUCH DISPUTES OR DIFFERENCES SHALL BE RESOLVED BY MUTUAL CONSULTATION. IF SUCH RESOLUTION IS NOT POSSIBLE THEN THE UNRESOLVED DISPUTES OR DIFFERENCE SHALL BE REFERRED FOR ADJUDICATION THROUGH ARBITRATION BY A SOLE ARBITRATOR TO BE APPOINTED BY THE RESPECTIVE STATE GOVERNMENT. THE ARBITRATION SHALL BE CONCLUDED ACCORDANCE WITH THE PROVISION OF ARBITRATION & CONCILIATION ACT, 1996 (26/96) OR ANY STATUTORY MODIFICATIONS OR RE-
ENACTMENT THEREOF AND THE RULES MADE THEREUNDER AND FOR THE TIME BEING IN FORCE SHALL APPLY TO ARBITRATION PROCEEDINGS. THE LANGUAGE OF ARBITRATION PROCEEDINGS SHALL BE ENGLISH. THE ARBITRATOR SHALL MAKE A REASONED AWARD (THE "AWARD"), WHICH SHALL BE FINAL AND BINDING ON THE PARTIES. THE COST OF THE ARBITRATION SHALL BE SHARED EQUALLY BY THE PARTIES TO THE AGREEMENT. HOWEVER, EXPENSES INCURRED BY EACH PARTY IN CONNECTION WITH THE PREPARATION, PRESENTATION SHALL BE BORNE BY THE EACH PARTY."
3. A demand came to be raised by the petitioner seeking for appointment of an Arbitrator by notice dated 3.8.2019 (Annexure-G) which has been received by the respondent and no reply has been furnished. Hence this petition. Page 3 of 5 Downloaded on : Tue Apr 26 20:49:32 IST 2022
C/IAAP/5/2020 ORDER DATED: 22/04/2022
4. Mr. K.M. Antani, learned Assistant Government Pleader appearing for the State seeks for further time to respond to the names suggested by the petitioner for being appointed as Arbitrators and he would also contend that appointment of Arbitrator is prerogative of the respondent and respondent alone is empowered to appoint the Arbitrator under the agreement and the petitioner does not have even a semblance of say in the matter of appointment of Arbitrator. In the teeth of the said contention raised by the learned Assistant Government Pleader, when clause 5 of the agreement dated 12.8.2014 is perused, it would clearly disclose that Sole Arbitrator is agreed to be appointed by the respective State Government and the proceedings of Arbitral Tribunal would be governed by the Act. It is for this reason, the petitioner sought for appointment of Arbitrator and had also suggested the names of the Arbitrators. If the respondent intended to appoint its Arbitrator, nothing prevented them to do so when demand was raised by the petitioner under notice dated 3.8.2019. After having kept quite for a period of three years, respondent cannot wake up from its slumber to contend that they would be appointing an Arbitrator of their choice after a period of three years. Hence, contention Page 4 of 5 Downloaded on : Tue Apr 26 20:49:32 IST 2022 C/IAAP/5/2020 ORDER DATED: 22/04/2022 of Mr. K.M. Antani, learned Assistant Government Pleader is considered and rejected.
5. For the reasons aforestated, this Court proceeds to pass following ORDER
(i) Petition is allowed.
(ii) Mrs. Jyotsna Yagnik, Retired District Judge, A/2/B, Chinaibaug Flats, C.G. Road, Ahmedabad-380006 is hereby appointed as the Sole Arbitrator to resolve the disputes between the parties in accordance with the Arbitration Centre (Domestic and International), High Court of Gujarat Rules, 2021. Both Parties would also be bound by said Rules.
(iii) Registry to communicate this order to the Sole Arbitrator forthwith by Speed Post.
(ARAVIND KUMAR,CJ) Bharat Page 5 of 5 Downloaded on : Tue Apr 26 20:49:32 IST 2022