Karnataka High Court
Transparent Energy Systems Pvt Ltd vs Chettinad Cement Corporation Ltd on 7 April, 2017
Equivalent citations: 2017 (4) AKR 808
Author: Aravind Kumar
Bench: Aravind Kumar
1
®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7th DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CIVIL MISCELLANEOUS PETITION No.108/2016
BETWEEN:
TRANSPARENT ENERGY SYSTEMS
PVT. LTD., PUNE 411037,
MAHARASHTRA STATE,
THROUGH ITS VICE PRESIDENT
(HUMAN RESOURCE & PUBLIC
RELATIONS), "PUSHPA HEIGHTS"
1ST FLOOR, BIBWEWADI CORNER
PUNE-SATARA ROAD,
PUNE-411 037. .... PETITIONER
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
1. CHETTINAD CEMENT
CORPORATION LTD.,
THROUGH ITS MANAGING
DIRECTOR, REIGSTERED OFFICE
AT 9TH FLOOR, RANI SEETHAI
HALL BUILDING, 603,
ANNA SALAI, CHENNAI-600 006
TAMIL NADU STATE
2. CHETTINAD CEMENT CORPORATION
LTD., THROUGH ITS
CEMENT MANUFACTURING
PLANT, SANGEM K, KALLUR
DIST-KALABURAGI
2
STATE- KARNATAKA. .... RESPONDENTS
(BY SRI SANDESH J CHOUTA AND SRI N.B. DIWANJI
ADVOCATES)
THIS CIVIL MISCELLANEOUS PETITION IS FILED
UNDER SECTION 11(4) OF THE ARBITRATION AND
CONCILIATION ACT, 1996 PRAYING TO APPOINT A
SUITABLE PRESIDING ARBITRATOR IN THE PENDING
ARBITRATION PROCEEDINGS ANY PERSON AS THIS
HON'BLE COURT DEEMS FIT, PREFERABLY A PERSON
FROM A LOCATION OUTSIDE CHENNAI AND PUNE, AND
DIRECT CONTINUATION OF ARBITRATION PROCEEDINGS
BY THE DULY CONSTITUTED ARBITRAL TRIBUNAL.
THIS PETITION BEING HEARD AND RESERVED,
COMING ON FOR PROUNCEMENT OF ORDERS THROUGH
VIDEO CONFERENCE AT BENGALURU THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
A short but interesting question of law under Arbitration and Conciliation Act, 1996 (for short 'Act') would arise for consideration in this Civil Miscellaneous Petition and it reads as under:
"Whether a petition filed under Section 11 (4) of the Arbitration and Conciliation Act, 1996, would be maintainable before this Court, when a petition or an application has been filed under Section 9 is pending before the High Court of Judicature at Madras in the light of bar contained under Section 42 of the Act?
3BRIEF BACKGROUND OF THE CASE
2. Petitioner herein entered into a contract with the respondent for supply, installation and commissioning of Waste Heat Recovery System Driven Power Generation Plant after negotiations on 14.09.2011. Pursuant to same work order came to be issued by the respondent in favour of petitioner for erection and commissioning of the project. For due performance of the contract petitioner as agreed to under the contract had furnished two performance bank guarantees of the value of ` 503 lakhs and ` 70 lakhs respectively. Petitioner claimed to have commissioned the project at site, which was seriously disputed by the respondent by communication dated 08.06.2015 (Annexure-C) and as such, respondent invoked the performance Bank Guarantees and realised the proceeds of such guarantees.
3. Subsequent to such invocation of bank guarantees by the respondent, petitioner invoked the arbitration clause of the agreement dated 14.09.2011 4 and by communication dated 04.12.2015 appointed its arbitrator by name Sri J.G.Pendse, since said arbitration clause provided for each party being entitled to appoint-nominate one (1) arbitrator. In reply, respondent by its communication dated 28.12.2015 (Annexure-F) appointed Hon'ble Justice S.Rajeswaran (Former Judge, High Court of Madras) as its nominee- arbitrator. On account of these two arbitrators not being ad-idem on the appointment of third arbitrator (Presiding Arbitrator), petitioner has filed the present petition under Section 11 (4) of the Act seeking for appointment of a Presiding Arbitrator. In the meanwhile, respondent herein has moved an application under Section 9 of the Arbitration and Conciliation Act, 1996 (for short 'Act') seeking certain interim measures before the High Court of Judicature at Madras (Original Civil Jurisdiction) in pursuance to agreement dated 14.09.2011.
4. To the present petition filed under Section 11(4) of the Act, respondent herein has filed its 5 statement of objections as "preliminary objections"
contending interalia that under the subject agreement dated 14.09.2011 parties had agreed for conducting the arbitration proceedings only at Chennai and as such Courts at Chennai alone would have exclusive jurisdiction to try any or all such petitions filed thereafter and as such this Court has no jurisdiction to entertain the present petition filed under Section 11(4) of the Act. It is also contended that respondent having filed an application under Section 9 of the Act before the High Court of Judicature at Madras even prior to the present petition came to be filed, bar contained under Section 42 of the Arbitration Act would be attracted and as such, present petition is not maintainable before this Court. It is also contended that any application or petition if it is to be filed subsequent to the application filed by the respondent under Part-I of the Act, will have to be made before the same Court namely, the High Court of Judicature at Madras and as such, this Court has no jurisdiction to entertain this petition. On these 6 grounds, respondent has sought for rejection of the present petition.
5. I have heard the arguments of Sriyuths Ameet Kumar Deshpande along with Venkatesh Mallabadi for petitioner and Sandesh Chouta along with N.B. Diwanji for respondents. Perused the records.
6. Sri Ameet Kumar Deshpande, learned counsel appearing for the petitioner would reiterate the contentions raised in the petition and submits that on account of certain disputes having arisen between parties in respect of contract dated 14.09.2011, petitioner has made a claim for payment of ` 12 Crores from respondent and respondent in turn has made a counter claim of more than ` 58 Crores against the petitioner and yet did not invoke the arbitration agreement and on account of contract between parties providing for such disputes being resolved by Arbitration, petitioner had invoked the arbitration clause by appointing its arbitrator and respondent in turn has also appointed its arbitrator and when it was 7 at the stage of these two arbitrators appointing a Presiding Arbitrator, respondent with an intention to defeat the claim of the petitioner had filed a petition under Section 9 of the Act before High Court of Judicature at Madras, that too after invocation of the arbitration clause by the petitioner with a malafide intent. It is also contended that cause of action for filing the petition in question arose immediately on completion of 30 days of statutory period as prescribed under Section 11 of the Act in the month of February, 2016 namely, after two nominated arbitrators failed to agree on the name of the Presiding Arbitrator.
7. He would elaborate his submission by contending that contract in question would not confer any exclusive jurisdiction on any particular Court nor it excludes or ousts or bar the jurisdiction of any Court having lawful jurisdiction to try the disputes arising thereunder. He would contend that when part of the cause of action has arisen at Kalaburagi in the State of Karnataka and in respect of the questions forming the 8 subject matter of the contract dated 14.09.2011, jurisdiction would lie within the Principal Civil Court situated at Kalaburagi to try all disputes and said Court alone would be the Court having jurisdiction as it would be the Court within the meaning of Section 2(1)(e) of the Act. Hence, he contends this Court has got jurisdiction to entertain the present petition as it would fall under Section 11(12) (b) of the Act. It is also contended that Section 11 of the Act falls outside the purview of Section 42 of the Act and in support of his contention, he has relied upon the judgment of the Hon'ble Apex Court in the case of STATE OF WEST BENGAL AND OTHERS VS. ASSOCIATED CONTRACTORS reported in AIR 2015 SC 260 and contends proceeding under Section 11 of the Act is expressly excluded from the purview of Section 42 of the Act. Hence, he prays for allowing the petition and prays for appointing a Presiding Arbitrator.
8. Per contra, Sri Sandesh Chouta, learned counsel appearing for the respondent would contend that undisputedly the contract has been executed at 9 Chennai and under the agreement dated 14.09.2011 both parties have agreed under clause-35 that arbitration would take place at Chennai in Tamil Nadu and as such Courts at Chennai alone will have jurisdiction and no other Court/s would have jurisdiction. He would further elaborate his submission by contending that when a petition under Section 9 of the Act has been filed by the respondent against the petitioner herein for certain interim reliefs and same is pending before Chennai Court, Section 42 of the Act would bar any other Court entertaining any other subsequent petition and it would be the Court at Chennai alone where petition under Section 9 is now pending which would have jurisdiction to try all such applications or petitions and no other Court. He would also contend that expression 'Court' has been defined under Section 2 (1)(e) of the Act to mean Civil Court of original jurisdiction and as such the Court as indicated in Section 42 of the Act would also mean and include only the Court of original jurisdiction and as such the petition filed under Section 9 of the Act by the 10 respondent which is now pending before the High Court of Judicature at Madras, would alone have jurisdiction to try any other subsequent petition and subsequent petition/s will have to be filed before "that Court alone"
namely, the High Court of Judicature at Madras having original jurisdiction as indicated in Section 42 of the Act. He would contend that expression "where with respect to an arbitration agreement any application under this Part" found in Section 42 of the Act would take within its sweep a petition filed under Section 9 of the Act also and as such, Court adjudicating said petition alone would have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement will have to be made or filed in that Court and in no other Court. In support of his submission he has also relied upon the judgment of Hon'ble Apex Court in the case of STATE OF WEST BENGAL AND ANOTHER VS. ASSOCIATED CONTRACTORS1, which has also been relied upon by the learned Advocate appearing for petitioner. On these 1 AIR 2015 SC 260 11 grounds, he has prayed for rejection of the present petition.
RE. DISCUSSION AND FINDING ON POINT FORMULATED:
9. Having heard the learned Advocates appearing for the parties and on perusal of the records and judgments relied upon by the learned Advocates, this Court is of the considered view that Section 42 of the Act has been pressed into service to contend that present petition is not maintainable. Section 42 of the Act reads:
"42. Jurisdiction- Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."
10. A bare reading of above provision would indicate where with respect to an arbitration agreement any application is made under said Part (Part-I) in a 12 Court, then said 'Court alone' would have jurisdiction over the Arbitral proceedings and all subsequent applications arising out of such agreement will have to be made in 'that Court' and no 'other Court' would have jurisdiction to entertain such petition/s or application/s filed subsequently. Thus, emphasis is on the expression 'Court alone' or 'that Court' or 'no other Court' for Section 42 being attracted.
11. The expression or word 'Court' is defined under Section 2(1)(e) of the Act then existing requires to be taken note of. It reads:
"2(1)(e) "Court" means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes."
Section 2(1)(e) defines the expression 'Court' to mean Civil Court of original jurisdiction in a district and also includes High Court which exercises its ordinary 13 original civil jurisdiction. In this background, if Section 42 is read, it would clearly indicate that applications made to Courts which are before, during or after arbitral proceedings made under Part-I of the Act are all covered by Section 42. In effect, Section 42 would indicate that application in Part-I should be made in a Court.
12. While explaining the meaning of the word 'Court' occurring in Section 2(1) (e) and its application with reference to Section 11 of the Arbitration Act the Hon'ble Apex Court in S.B.P.AND COMPANY VS. PATEL ENGINEERING LIMITED reported in (2005) 8 SCC 618 has held that instead of Court, the power to appoint arbitrators contained in Section 11 is conferred on the Chief Justice or his delegatee. It has been held:
"13. It is common ground xxxx. Ordinary original civil jurisdiction. The Principal Civil Court of original jurisdiction is normally the District Court. the High Courts in India exercising ordinary original civil jurisdiction are not too many. So in most of the States the concerned Court would be the district Court.
obviously, the parliament did not want to confer the power on the district Court, to entertain a request for appointing an arbitrator or for constituting an arbitral 14 tribunal under Section 11 of the Act. it has to be noted that under section 9 of the Act the district Court or the High Court exercising original jurisdiction, has the power to make interim orders prior to, during or even post arbitration. It has also power to entertain a challenge to the award that ultimately be made. The framers of the statute must certainly be taken to have been conscious of the definition of 'Court' in the act. it is easily possible to contemplate that they did not want the power under section 11 to be conferred on the district Court or the high Court exercising original jurisdiction. The intention apparently was to confirm the power on the highest judicial authority in the state and in the country, on Chief Justices of High Court and on the Chief Justice of India. Such a provision is necessarily xxxx constituting the arbitral tribunal."
13. Interpretation of Section 2(1)(e) came up for consideration before the Hon'ble Apex Court in the case of STATE OF WEST BENGAL vs. ASSOCIATED CONTRACTORS reported in AIR 2015 SC 260 and while examining the issue, as to whether Supreme Court is a Court within the meaning of Section 2(1)(e) of the Act. It came to be held that in under no circumstances can Supreme Court be "Court" for the purposes of Section 2(1)(e) of the Act. 15
14. The question which came to be formulated for adjudication in STATE OF WEST BENGAL's case by the Apex Court was:
"In this appeal, the question that arises for decision is which Court will have the jurisdiction to entertain and decide an application under Section 34 of the Arbitration and Conciliation Act, 1996?"
It came to be held that Supreme Court cannot be considered to be "Court" for the purposes of Section 42 and it was held:
"20. As noted above, the definition of "court" in Section 2(1)(e) is materially different from its predecessor contained in Section 2(c) of the 1940 Act. There are a variety of reasons as to why the Supreme Court cannot possibly be considered to be "court" within the meaning of Section 2(1)(e) even if it retains seisin over the arbitral proceedings. Firstly, as noted above, the definition is exhaustive and recognizes only one of two possible courts that could be "court" for the purpose of Section 2(1)(e). Secondly, under the 1940 Act, the expression "civil court" has been held to be wide enough to include an appellate court and, therefore would include the Supreme Court as was held in the two judgments aforementioned under the 1940 Act. Even though this proposition itself is open to doubt, as the Supreme Court exercising jurisdiction under 16 Article 136 is not an ordinary Appellate Court, suffice it to say that even this reason does not obtain under the present definition, which speaks of either the Principal Civil Court or the High Court exercising original jurisdiction. Thirdly, if an application would have to be preferred to the Supreme Court directly, the appeal that is available so far as applications under Sections 9 and 34 are concerned, provided for under Section 37 of the Act, would not be available. Any further appeal to the Supreme Court under Article 136 would also not be available. The only other argument that could possibly be made is that all definition sections are subject to context to the contrary. The context of Section 42 does not in any manner lead to a conclusion that the word "court" in Section 42 should be construed otherwise than as defined. The context of Section 42 is merely to see that one court alone shall have jurisdiction over all applications with respect to arbitration agreements which context does not in any manner enable the Supreme Court to become a "court"
within the meaning of Section 42. It has aptly been stated that the rule of forum conveniens is expressly excluded by section 42. See: JSW Steel Ltd. vs. Jindal Praxair Oxygen Co.Ltd., (2006) 11 SCC 521 at para 59 : (2006) AIR SCW 5130. Section 42 is also markedly different from Section 31(4) of the 1940 Act in that the expression "has been made in a court competent to entertain it" does not find place in Section 42.
This is for the reason that, under Section 2(1)(e), the competent Court is fixed as the Principal Civil Court exercising original jurisdiction or a 17 High Court exercising original civil jurisdiction, and no other court. For all these reasons, we hold that the decisions under the 1940 Act would not obtain under the 1996 Act, and the Supreme Court cannot be "court" for the purposes of Section 42."
15. In the background of facts obtained in the said case, Hon'ble Apex Court has noticed that Part-I of the Act contemplates various applications made with respect to arbitration agreements, like application under Section 8 of the Act also and held such application can be made before a judicial authority before which an action is brought in a matter, which is the subject matter of an arbitration agreement. Hence, it came to be held that application made under Section 8 of the Act need not be to 'Courts', and for that reason, it has been that such applications would be outside the scope of Section 42 of the Act.
16. Hon'ble Apex Court in STATE OF WEST BENGAL2's case has referred to its earlier judgment in the case of P.ANAND GAJAPATHI RAJU AND OTHERS 2 AIR 2015 SC 260 18 vs. P.V.G.RAJU (DEAD) AND OTHERS reported in 2000 (4) SCC 539 and has held that Part-I of the Arbitration Act, 1996 contemplates various applications being made like application under Section 8, which can be made before a judicial authority before which an action is brought in a matter which is the subject matter of arbitration agreement. It has further held that applications made under Section 8 need not be to Courts, and for that reason alone, such application would be outside the scope of Section 42. It came to be held:
"that applications under Section 8 would be outside the ken of Section 42. We respectfully agree, but for the reason that such applications are made before "judicial authorities" and not "courts" as defined. Also, a party who applies Under Section 8 does not apply as dominus litis, but has to go wherever the 'action' may have been filed. Thus, an application Under Section 8 is parasitical in nature- it has to be filed only before the judicial authority before whom a proceeding is filed by someone else. Further, the "judicial authority" may or may not be a Court. And a Court before which an action may be brought may not be a Principal Civil Court of original jurisdiction or a High Court exercising original jurisdiction. This brings us then to the definition of "court" Under Section 2(1)(e) of the Act."19
17. It has been further held that applications made under Section 11 of the Act are not to be moved before the "Court" as defined under the Act, but before the Chief Justice of the High Court or of the Supreme Court, as the case may be, or their delegatees. It came to be held in STATE OF WEST BENGAL3 case to the following effect:
"It is obvious that Section 11 applications are not to be moved before the "court" as defined but before the Chief Justice either of the High Court or of the Supreme Court, as the case may be, or their delegates. This is despite the fact that the Chief Justice or his delegate have now to decide judicially and not administratively. Again, Section 42 would not apply to applications made before the Chief-Justice or his delegate for the simple reason that the Chief Justice or his delegate is not "court" as defined by Section 2(1)(e). The said view was reiterated somewhat differently in Pandey and Co. Builders (P) Ltd. vs. State of Bihar and Anr.
MANU/SC/8643/2006: (2007) 1 SCC 467 at paras 9, 23-26."
18. While examining the import of Section 11(10) and Section 11(12) of the Act it came to be held by the Apex Court that Section 11(12)(b) does not in any 3 AIR 2015 SC 260 20 manner make the Chief Justice or his designate a "Court" for the purpose of Section 42. It was held:
"It is obvious that Section 11(12)(b) was necessitated in order that it be clear that the Chief Justice of "the High Court" will only be such Chief Justice within whose local limits the Principal Civil Court referred to in Section 2(1)(e) is situate and the Chief Justice of that High Court which is referred to in the inclusive part of the definition contained in Section 2(1)(e). This Sub-section also does not in any manner make the Chief Justice or his designate "court" for the purpose of Section 42. Again, the decision of the Chief Justice or his designate, not being the decision of the Supreme Court or the High Court, as the case may be, has no precedential value being a decision of a judicial authority which is not a Court of record."
19. The Hon'ble Apex Court in STATE OF WEST BENGAL's case has categorically held that Section 2(1)
(e) does not in any manner make the Chief Justice or his designate "Court" for the purpose of Section 42. It was held as:
"17. That the Chief Justice does not xxxx definition contained in Section 2(1)(e). This sub-section also does not in any manner make the Chief Justice or his designate "Court" for the purpose of Section 42. Again, the decision of the Chief Justice on his designate, not being the decision of the Supreme Court or the High Court, as the case may be, has no 21 precedential value being a decision of a judicial authority which is not a Court of record.
It came to be further held in STATE OF WEST BENGAL's case that in contrast with applications moved under section 8 and 11 of the Act, applications moved under Section 9 are to the "Court" as defined for the passing of interim orders. The conclusion drawn by the Apex Court reads as follows:
"25. Our conclusions therefore on Section 2(1)(e) and Section 42 of the Arbitration Act, 1996 are as follows:
(a) Section 2(1)(e) contains an exhaustive definition marking out only the Principal Civil Court of original jurisdiction in a district or a High Court having original civil jurisdiction in the State, and no other court as "court" for the purpose of Part-I of the Arbitration Act, 1996.
(b) The expression "with respect to an arbitration agreement" makes it clear that Section 42 will apply to all applications made whether before or during arbitral proceedings or after an Award is pronounced under Part-
I of the 1996 Act.
(c) However, Section 42 only applies to applications made under Part-I if they are made to a court as defined.
22Since applications made under Section 8 are made to judicial authorities and since applications under Section 11 are made to the Chief Justice or his designate, the judicial authority and the Chief Justice or his designate not being court as defined, such applications would be outside Section 42.
(d) Section 9 applications being applications made to a court and Section 34 applications to set aside arbitral awards are applications which are within Section 42.
(e) In no circumstances can the Supreme Court be "court" for the purposes of Section 2(1)(e), and whether the Supreme Court does or does not retain seisin after appointing an Arbitrator, applications will follow the first application made before either a High Court having original jurisdiction in the State or a Principal Civil court having original jurisdiction in the district as the case may be.
(f) Section 42 will apply to applications made after the arbitral proceedings have come to an end provided they are made under Part-
I.
(g) If a first application is made to a court which is neither a Principal Court of original jurisdiction in a district or a High Court exercising original jurisdiction in a State, such application not being to a court as defined would be outside Section 42.
Also, an application made to a court 23 without subject matter jurisdiction would be outside Section 42."
20. The above conclusion drawn by Apex Court would leave no manner of doubt, that expression "Court" as defined under Section 2(1) (e) would not take within its sweep Section 11 of the Act. The words appearing in Section 42 of the Act would clearly indicate where any application under that Part (Part-I) has been made in a "Court", that "Court" alone would have jurisdiction over the arbitration proceedings and all subsequent applications arising out of that agreement is required to be made in that Court and in no other Court. The emphasis in Section 42 is to the word "Court" and as such when it is examined with reference to Section 11 (4) it would indicate that neither the Chief Justice nor his designate under Section 11 (4) is a "Court" as expressed under Section 2(1)(e) of the Act. The bar of jurisdiction contained under Section 42 have been intentionally made applicable to a "Court" as defined in Section 2(1) (e) by the Parliament. In that view of the matter, the applications filed under Section 24 11(4) to the Chief Justice or his designate cannot be construed as an application having been made to the 'Court' and neither the Chief Justice nor his designate would be "Court" as defined under Section 2(1)(e) of the Act and as such applications filed under Section 11 would fall outside the scope and ambit of Section 42.
21. It is in this background the Hon'ble Apex Court in STATE OF WEST BENGAL's case has held that section 9 application being an application made to a Court and as such if an application is to be made under section 34 for setting aside an award, it has to be necessarily filed or made before that Court where the application under section 9 had been filed and pending and it is that Court alone, which would have jurisdiction to try all subsequent applications and bar contained under Section 42 would come into play and prohibit filing of any subsequent application/s before any other Court.
25
22. In the light of aforestated discussion, when the facts on hand are examined, it would clearly indicate that petitioner by communication dated 04.12.2015 - Annexure-E had invoked arbitration clause of the agreement dated 04.09.2011 between the parties and had appointed its Arbitrator. In reply, respondent, by communication dated 28.12.2015 - Annexure-F also appointed its Arbitrator. On account of there being no ad idem on the appointment of third Arbitrator - Presiding Arbitrator, petitioner filed the present petition on 17.05.2016 under Section 11(4) of the Act seeking for appointment of a Presiding Arbitrator. In the meanwhile, respondent, after having appointed its Arbitrator by communication dated 28.12.2015 - Annexure-F, is said to have filed a petition under Section 9 of the Act before High Court of Judicature at Madras (of original jurisdiction) in O.A.No.9/2016 and as such, preliminary objection as already noticed herein above has been raised contending that petition filed by the present petitioner under Section 11(4) of the Act is not maintainable on 26 account of there being a bar under Section 42 of the Act. However, in the light of discussion made herein above, the bar contained under Section 42 of the Act insofar as petition filed under Section 11(4) of the Act would not be applicable and said application would fall outside Section 42 of the Act. Hence, preliminary objection raised about maintainability of the present petition raised by respondent cannot be sustained and it stands rejected.
23. There being no dispute to the fact that both the petitioner and respondent having exercised their right under clause 35 of the subject agreement namely having exercised their right to nominate their respective arbitrators and there being no agreement between the two arbitrators for appointing a Presiding Arbitrator and they having failed to reach an agreement in this regard, this Court is satisfied that Presiding Arbitrator is required to be appointed.
27
24. In the result, I proceed to pass the following:
ORDER
(i) Petition filed under Section 11(4) of the Arbitration and Conciliation Act, 1996 is hereby allowed.
(ii) Hon'ble Sri Justice Shivaraj V.
Patil, Former Judge, Supreme
Court of India is hereby
appointed as the Chairman -
Presiding Arbitrator of the
Arbitral Tribunal to adjudicate
the dispute between the parties
arising out of agreement dated
14.09.2011 along with co-
Arbitrators appointed by the
respective parties.
(iii) Arbitral Tribunal shall be at
liberty to regulate the
proceedings after notifying both the parties.
(iv) Registry is directed to
communicate this order to the
learned Presiding Arbitrator -
Hon'ble Sri Justice Shivaraj V.
28
Patil - Former Judge, Supreme
Court of India, forthwith by
enclosing the copy of the
operative portion of this order.
Parties to bear their costs.
Sd/-
JUDGE
Swk/sp