Karnataka High Court
Bangalore Housing Development And ... vs Ibc Knowledge Park Private Limited on 1 October, 2009
Equivalent citations: AIR 2010 KARNATAKA 59, 2010 (1) AIR KANT HCR 682, 2010 A I H C 1613, (2010) ILR (KANT) 1112, 2010 (4) KCCR 115 SN, (2010) 1 KANT LJ 94, (2010) 1 ICC 706, (2010) 3 CIVLJ 43
Author: K.Bhakthavatsala
Bench: K.Bhakthavatsala
CMP No. 115/2008 The respondent herein is the claimant before the
Tribunal which is comprising of Sri.Justice K.Shivasha,n1§ar':
retired High Court Judge, as a Presiding _& 0' R.N.Narasimha Murthy and Sri.B.V.Acha.ryaL'senior -:adxfoc_a.te'sV'Vas". arbitrators to adjudicate the dispute» between the parties " ' V On 09.07.2008, in the _1 7m :vTI*ibunal. Sri.R.N.Narasimha Murthy, a'rh:i'Lrator of the claimant, indicated that he wantedvto rescziheihiroseif case. He sent a letter dated to::"the._ u(3fi'i1cer as well as the counsels appeariiag eirpressing his desire to withdraw frorn _' _ arloitrator. In View of the Withdrawal froroV_gth.e oft_'.1ce..Aobf:th_:e"arbitrator by Sri.R.N.Narasirr1ha Murthy, _ arbitrators decided to continue the ..__theH Tribunai is reconstituted and adj oiurried .
'V present petition was fiied on 18.09.2008 seeking ; rE:§.piZiQiIi1Ififii1t of an arbitrator in piace of Sri.R.N.Narasimha Murthy that the respondent failed to nominate its arbitrator in ' ' ._ tpiace"otf Sri.R.1\}.Narasirnha Murthy. CMP NO.ll5/2808 6
(ii) that the arbitrator's letter of retirement dated 12.07.2008 cannot be treated as notice within of Section 11(4) of the Act;
{iii} that if a party having respo.nsib_i1ity.'of *----a:ppoi:nting_r arbitrator does not do so within days.' if being made by the other Vppartyfi'-._the V appointment is not autorriati,Vea!1y forfeited and the appointment can stii1_ife_ rriade. " _
5. Learned counseiefor thief the following decisions:
1) 2000(8) s1cffC7i_5 iVV_ii)ATi§;R.Vv_S'NIfF0fIGEARS LTD, V/s.
TATA Fii;IAi~scE - on the point that if a responsibility of appointing . Arbitijatoer does." notfdovlso within 30 days of demand V the other party, the right to make the 0 not automatically forfeited.
0 11) 2'oo7.'.e'(7;-S'cc 684 [UNION or' INDIA V/s. BHARATH _ MANUFACTURING COMPANY (P) LIMITED}.
0 {The"~«_.deeision rendered in DATAR SWITCHGEARS supra, was followed.) K. CM}? NO.l3.5/2008 7 iii] zoosuo) sCC 763 (NATIONAL HIGHWAYS AUTHORITY OF INDIA AND ANOTHER v/3,3. _V BIMIHIWAY DDB LTD., [JV] AND OTHERS. (The 1',ati'(4')_'» of laid down in DATAR SWITCHGEARS LEMETED, was followed and held that the invoOat.i_O'n "
11(6) of the Act is squarely based on a.II§IefaIIi.t._of. party.
Iv] AIR 2006 sC_ M/s.YAsIIWI'fH CONSTRUCTIONS (P) ' '.15/I--/,s.sIMPLEx CONCRETE PILES INDIA on the point that the ap}.):oir,ItmeIIt'o'f'Ati1e' arbitrator must be dOIf_1e to€;.the _.o%'tgiTIa1"'agreement or provision app1iCafOte."" vapizioihtment of the arbitratof'at"thie stage.' t'
v) 2007(5)»._ SCC' AND sTEEL- COMPANY LIMITED v/ LINES) on the pO1nt that If therefljs "no agreement. between the part1es as to V for,' appointment of arbitrators. Section ,1'I(3j;{A}ja;nI"(s1 of the Act are apphcabie.
vi) AIR 2007' sC 1764 {ACE PIPELINE CONTRACTS "'1?RIVA'zI'EA:' LIMITED V/s. BHARAT PETROLEUM "'--"_C»QR'l?ORAT'ION LIMITED] on the point that so far as the "period of thirty days is Concerned, it is not
-Ivmentioned in suh~seC.(6] of Section 11. The period of L_ CM}? No.1l5/2008 ll entrusted by sub--section [4] or sub--section (5) or sub~ section (6) to him.
[11] Where more than one request has-fheeneid made under sub--section [4] or subwsection [E§}"o'r' ' section (6) to the Chief Justices of Courts or their designates, the Chief Justice .orhis'~ designate to whom the request._:Iia_s beenfirst under the reievant sub~sectiofnH,V:shaI1 competent to decide on th:e=r_eque'st_.t (12) (a) Where theAAmattersV.. tefe:EretI5t:o-- 'in sub- sections (4), (5},"t.§3_);',-- (711, tie}?anci:"v'(i1o)_"___ett~tse in an international;c'o'n1rnerc_§al «ar3_o"itra't-_{on._' reference to "Chief JustiCe.'.'V Vthfo'se:'V'vf--Asutoiesections shall be construed as at '1'e,.ere15.ce tothe "Chief Justice of India". [13] Where thes.m"atte.rs"--.reierred to in sub--sections (4), (51,161, '"('7)t:,' ts"; a"nd"(1o) arise in any other ~"'.arbit:"ation,' the refere._n...c«e to "Chief Justice" in those "~._sub'~«seCti_on.s be construed as a reference to the c'h:ie£-Justice" ojf-the High Court within whose local limitsthe civil Court referred to in clause (e) 'of subiseetton m of section 2 is situate and, where the H Court 'itself is the Cou referred to in that clause, if :to._t}1e Chief Justice of that igh Court. CM? No.l15/2008 12
7. It is pertinent to mention that the Arbitration clause in the agreement does not provide a procedure for filling up of the vacancy that arose after the Arbitral Tribunal is constituted. Admittedly. as per Section 1 1(4) {a) of the Act, the petitioner A' called upon the respondent to fill up the vacancy that : V' Withdrawal from the office of Arbitrator-I V Murthy. The letter of withdrawal from the««ofi7ice'lvof'llthe' by Sri.R.N.Narasimha Murthy cannot consthrupedt asia to fill up the Vacancy within the scope ofp.Seic'tioii.._Vl 1 by the petitioner to the respondent. On respondent/ claimant has taken appropriatewsteips 'to:*r_1orr:incai;e his arbitrator and in that regard,--afl1ette.r_:izeras'«addressed to the arbitrator seeking his consent and after he Vag.3;reeEi--.._to:'.be arbitrator, a memo dated 22.09.2008' filed'-filling vacancy. Therefore, the petition filed calling upon the respondent to fill up the of the Arbitrator on behalf of the itj_i'espondent.__assreqtiiired under Section 1l{4}{a) of the Act, is not ' "'1n'a'intainab1e: v7I_'he decisions cited by the learned counsel for the ' ''respondent:uare of avail to the case of the respondent. There is no 'Ine'rit _in_§the petition as the respondent has already nominated his L CMP No.1l5/2008 13 arbitrator and filled up the vacancy that arose due to withdrawal from the office of arbitrator by Sri.R.N.Narasimha Murthy. .._'
8. In the result. the petition fails and the same is ~ dismissed. No costs.
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