Karnataka High Court
Sri B. Krishnamurthy vs M/S. Hindustan Petroleum Corporation ... on 21 July, 2015
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2015
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
C.M.P.No. 193/2013
BETWEEN
SRI B.KRISHNAMURTHY
AGED ABOUT 47 YEARS
S/O LATE M.S. RANGAPPA
NO 108, ANAGHA APARTMENT
2ND MAIN ROAD, GAVIPURAM EXTENSION
BANGALORE 560 0719 ... PETITIONER
(By Sri.ABHINAV R., ADV.)
AND
1. M/s. HINDUSTAN PETROLEUM CORPORATION LTD.,
A GOVERNMENT OF INDIA ENTERPRISE HAVING ITS
REGISTERED OFFICE AT NO.17,
JAMSHEDJEE TATA ROAD,
MUMBAI-400020,
REP BY ITS CHAIRMAN AND
MANAGING DIRECTOR.
2. M/s HINDUSTAN PETROLEUM CORPORATION LTD.,
NO 77, OLD MADRAS ROAD, DOORVANI NAGAR
KRISHNARAJAPURAM BANGALORE 560 016
REP BY ITS SENIOR MANAGER AND
DULY CONSTITUTED ATTORRNEY
3. SRI RAJIV CHANDRA
DEPUTY GENERAL MANAGER,
DEVELOPMENT INFORMATION SYSTEM CENTRE
HINDUSTAN PETROLEUM CORPORATION LTD.
DATA CENTRE.
PLOT NO.40-II HITECH CITY,
2
MADHAPURA,
HYDERABAD-500081. ... RESPONDENTS
(By Sri.M.S.NARAYAN, ADV. FOR R1 & R2)
THIS CIVIL MISC. PETITION UNDER SEC.11(8) OF THE
ARBITRATION AND CONCILIATION ACT 1996, PRAYING THIS
HON'BLE COURT TO DECLARE THAT THE 3RD RESPONDENT IS
NOT ENTITLED TO ACT AS THE SOLE ARBITRATOR TO
ADJUDICATE THE DIPSUTE AND DIFFERENCES, IF ANY BETWEEN
THE PETITIONER AND RESPONDENT CORPORATION, IN THE
ABSENCE OF A VALID AND SUBSISTING ARBITRATION
AGREEMENT BETWEEN THE PARTIES AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Relief sought in this petition is for a declaration that the 3rd respondent is not entitled to act as sole arbitrator in the matter of adjudication of dispute that has arisen between the petitioner and the respondent - Corporation. An alternative relief is sought to appoint any retired judge of this Court or a retired District and Sessions Judge as sole arbitrator.
2. Facts, briefly stated, are that petitioner was appointed as a dealer of the 1st respondent - Corporation. A dealership agreement was entered into on 06.09.1974 between the parties. According to the petitioner, there is no arbitration clause in the dealership agreement. It is urged by the petitioner that though 3 another agreement was signed in the year 1976 the same was not acted upon by the parties as it was executed under mistake. Petitioner also denies the dealership agreement stated to have been executed between himself and the 1st respondent on 23.06.1987 contending that the said document is a fabricated one.
3. A dispute having arisen between the parties with regard to the dealership and the rights and obligations flowing therefrom, the 1st respondent has invoked the arbitration clause contained in the agreement dated 23.06.1987 and has appointed the 3rd respondent - Deputy General Manager Development Information System Centre, Hindustan Petroleum Corporation Limited, Hyderabad, as an arbitrator to adjudicate the dispute. At this stage, petitioner has approached this Court under Section 11(8) of the Arbitration and Conciliation Act, 1996 (for short 'the Act') challenging appointment of 3rd respondent as arbitrator and requesting this Court to appoint any other person preferably a retired Judge of High Court or retired District Judge to act as Arbitrator.
4. The main contention urged by the petitioner is that perusal of the agreement dated 23.06.1987 would indicate that 4 the clauses in the said agreement have been interpolated and changed. It is also urged that the agreement has been embossed on a stamp paper of the year 1976, therefore, apparently, the agreement was a fabricated one and hence, no reliance could be placed on the same. It is further contended that 3rd respondent is a graduate in Engineering and he is entrusted with the arbitration work for the first time. Therefore, he would not be in a position to discharge the functions as an arbitrator effectively. It is also alleged that 3rd respondent being an officer subordinate to the Chairman and Managing Director of the 1st respondent does not possess requisite qualification to act as an arbitrator and conduct the proceedings in an unbiased manner. It is thus contended that this Court may declare that there is no valid arbitration agreement binding and subsisting between the parties and to set aside the appointment of the arbitrator.
5. Learned counsel appearing for the respondents strongly refutes the contentions urged by the petitioner. It is urged by him that the disputed question raised by the petitioner can be examined in the arbitration including as regards the existence or otherwise of a valid arbitration agreement. 5
6. Upon hearing the learned counsel for the parties and on consideration of the respective contentions, it is clear that main grievance of the petitioner is with regard to the alleged fabrication of the agreement dated 23.06.1987. Existence of this agreement and the arbitration clause contained therein is disputed by the petitioner. If that is so, it is well established that the question whether there is a valid arbitration clause governing the parties can be determined and decided by the arbitrator himself. Therefore, this Court will not enter into such a disputed question of fact in exercise of the powers under Section 11(8) of the Act.
7. The other contention urged is with regard to the qualification of the arbitrator and the alleged bias he may entertain having regard to his position as a Deputy General Manager under the Hindustan Petroleum Corporation Limited - 1st respondent. Merely because the Deputy General Manager is engaged in engineering work, it cannot be said that he is not qualified to handle the case as an arbitrator. Insofar as the apprehension of bias is concerned, it has to be made clear that in case there is any bias on the part of the arbitrator, it would be upon for the petitioner to allege and prove it in an 6 appropriate proceeding. Therefore, there is absolutely no justification for this Court to entertain the petition.
8. Hence, this petition is dismissed.
Sd/-
JUDGE VP