Bombay High Court
Bharat Bhushan Gupta vs M.M. Developers And 4 Ors on 6 March, 2020
Author: S.J.Kathawalla
Bench: S.J.Kathawalla
This Order is modified/corrected by Speaking to Minutes Order dated 06/03/2020
Nitin 1 / 4 920-ARBAP-457-2019-Section-11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
ARBITRATION APPLICATION NO.457 OF 2019
Bharat Bhushan Gupta ... Applicant
Versus
M/s. M.M. Developers Shramjivi and Ors. ... Respondents
Ms.Pooja Kane i/b. J.Sagar Associates for the Applicant. None for Respondent Nos. 1 to 4.
Mr.Bhupendra Parekh for Respondent No. 5.
CORAM : S.J.KATHAWALLA,
DATE : 6TH MARCH, 2020
P.C. :
1. The Applicant has fled the above Arbitration Application against the Respondents under section 11 of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (Act No. 3 of 2016) (the Act) for appointment of a sole Arbitrator to resolve the disputes arisen between the parties under the Deed of Retirement cum Continuation dated 12 th September, 2014.
2. Clause 19 of the said Deed of Retirement cum Continuation dated 12 th September, 2014 pertains to arbitration and is reproduced hereunder :
"19. All disputes and difeeences whatsoevee, which shall, eithee dueing the paetneeship oe aftee the teemination theeeof, aeise amongst the Continuing ::: Uploaded on - 16/03/2020 ::: Downloaded on - 07/06/2020 21:10:06 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/03/2020 Nitin 2 / 4 920-ARBAP-457-2019-Section-11.doc Paetnees oe theie eespective eepeesentatives oe amongst any Continuing Paetnee and the eepeesentatives of the othee paetnee oe paetnees touching these peesents eelating to the consteuction oe application heeeof oe any clause oe thing heeein contained, oe any account, valuation, division, debt oe liabilities to be made heeeundee oe as to any act, deed oe omission oe omissions of any paetnee oe as to any othee mattee in any way eelating to the paetneeship business oe the afaies theeeof oe the eights, duties, liabilities of any peeson undee these peesents, shall be eefeeeed to a single Aebiteatoe to be appointed by the paeties to the difeeence, in accoedance with and subject to the peovisions of the Aebiteation and Conciliation Act, 1996, oe any statutoey modifcation oe ee-enactment theeeof foe the time being in foece and the Awaed of such Aebiteatoe shall be fnal and binding on all the paeties to the said dispute."
3. Since disputes arose between the parties, the Applicant through its Advocate's notice dated 18th February, 2019 invoked the arbitration and suggested the names of three Arbitrators. However, the Respondents have not replied to the said notice. In view thereof, the Applicant is constrained to fle the above Arbitration Application seeking appointed of sole Arbitrator.
4. As can be seen from the Afdavit of Service dated 6 th March, 2020, copy of the above Arbitration Application has been served on the Respondent Nos. 1 to 4 by the Speed Post AD.
5. From the above facts, it is clear that there exists an Arbitration Agreement between the parties. Though the above Arbitration Application is served on Respondent Nos. 1 to 4, they have failed to remain present by themselves and / or ::: Uploaded on - 16/03/2020 ::: Downloaded on - 07/06/2020 21:10:06 ::: This Order is modified/corrected by Speaking to Minutes Order dated 06/03/2020 Nitin 3 / 4 920-ARBAP-457-2019-Section-11.doc their Advocate/s. The Respondent Nos. 1 to 4 have not agreed to any of names suggested by the Applicant but have also not suggested the name of any other person to act as an Arbitrator in the matter.
6. It is therefore clear that the Respondents have failed to appoint an Arbitrator to resolve their disputes. Hence, the following Order :
i. Mr.Prathamesh Kamath, Advocate, is appointed as the sole Arbitrator to decide the disputes between the parties arising out of the Deed of Retirement cum Continuation dated 12th September, 2014.
ii. Mr.Prathamesh Kamath, Advocate, shall fle his disclosure under Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996 as amended by the Arbitration and Conciliation (Amendment) Act, 2015 (Act No. 3 of 2016) with the Prothonotary and Senior Master of this Court on or before 24 th March, 2020.
iii. The venue of arbitration shall be at Mumbai. iv. The parties and / or their Advocates shall appear before the learned
Arbitrator in his Chambers on 25th March, 2020 at 11.00 a.m. and obtain necessary directions.
v. The cost of arbitration shall initially be borne by the parties equally. vi. The fees payable to the Arbitral Tribunal shall be as prescribed under the Bombay High Court (Fees Payable to Arbitrators) Rules, 2018.
vii. All contentions of the parties are kept open.
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This Order is modified/corrected by Speaking to Minutes Order dated 06/03/2020 Nitin 4 / 4 920-ARBAP-457-2019-Section-11.doc viii. The Advocate for the Applicant shall forthwith serve a copy of this Order on Respondent Nos. 1 to 4 by Speed Post AD and / or by email. ix. The Arbitration Application is accordingly disposed of.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 16/03/2020 ::: Downloaded on - 07/06/2020 21:10:06 :::