Karnataka High Court
M/S Coldex Logistics Private Ltd vs Mr. Narasimha Murthy V on 30 May, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:18379
CMP No. 135 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL MISC. PETITION NO. 135 OF 2023
BETWEEN:
M/S. COLDEX LOGISTICS PRIVATE LTD
A COMANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT 18/45,
NEAI WALA LANE, KAROL BAUG
NEW DELHI- 110005.
REPRESENTED BY ITS
AUTHORIZED SIGNATORY,
MR. PEDIREDIA ADINARAYANA.
...PETITIONER
(BY SRI. NIDHISHREE B V., ADVOCATE)
Digitally signed by AND:
DHARMALINGAM
Location: HIGH
COURT OF MR. NARASIMHA MURTHY V
KARNATAKA AGED ABOUT 50 YEARS,
S/O.MR. VENKATARAMAIAH,
RESIDING AT BOMMASHETTHALLI
DOOR NO.10, HUSKAR POST,
DASANPUR HOBLI,
BENGALURU NORTH TALUKA,
BENGALURU.
...RESPONDENT
(BY SRI. SHAMANTH S N., ADVOCATE)
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NC: 2024:KHC:18379
CMP No. 135 of 2023
THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER
SEC.11(6) OF THE ARBITRATION AND CONCILIATION ACT,
1996, PRAYING THIS HONBLE COURT TO APPOINT A SOLE
ARBITRATOR IN THE INTEREST OF ECONOMIC AND LOGICAL
EFFICIENCY AS SUGGESTED IN CLAUSE 28 OF THE LEASE
DEED DATER 13.01.2017 AT ANNEXURE-A, OR ANY OTHER
ARBITRATOR AS THIS HONBLE COURT DEEMS PROPER, AS THE
SOLE ARBITRATOR FOR ADJUDICATION OF DISPUTES THAT
HAVE ARISEN BETWEEN THE PETITIONER AND THE
RESPONDENT UNDER THE LEASE DEED AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
This Civil Miscellaneous Petition is filed under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of a sole Arbitrator to resolve the disputes and difference between the parties in terms of the Lease Deed dated 13.01.2017 at Annexure-A.
2. After issuance of notice, the respondent has entered appearance through a learned Counsel.
3. Learned Counsel for the respondent seeks to raise an objection regarding the non-compliance of the requirement of the arbitration clause and the provisions contained in Section 11 of the Act, 1996. Learned Counsel -3- NC: 2024:KHC:18379 CMP No. 135 of 2023 points out from the arbitration clause, more particularly, clause 28.2 that the requirement is that each of the party shall appoint one Arbitrator and the said two Arbitrators in turn will have to appoint the third Arbitrator, who shall preside as a Chairman of the arbitral tribunal. However, in the arbitration notice issued by the petitioner on 08.07.2021 at Annexure-L, the petitioner has chosen to appoint a sole arbitrator and has nominated a retired District Judge to be the sole arbitrator. Learned Counsel would therefore submit that the arbitration notice issued by the petitioner being non-compliant of the requirement of law and arbitration clause, the petition should be rejected.
4. Per contra, learned Counsel for the petitioner draws the attention of this Court to the relevant paragraph of the arbitration notice viz., paragraph No.8 and submits that the petitioner has made it clear that in the interest of economic and logistical efficacy the petitioner has chosen to nominate the sole arbitrator. Nevertheless, in paragraph No.9, the petitioner has also clearly stated that if the -4- NC: 2024:KHC:18379 CMP No. 135 of 2023 respondent is agreeable to arbitration by a sole Arbitrator, the respondent may confirm the nomination made by the petitioner. In the event, if the respondent is not agreeable for the nomination made by the petitioner, then the respondent may nominate a sole Arbitrator of his choice and intimate the same to the petitioner within 15 days from the date of receipt of the notice. Learned Counsel would therefore submit that the petitioner had therefore made it clear that the choice was left to the respondent and it was not compelled on the part of the respondent to agree for the appointment of a sole Arbitrator which was nominated by the petitioner.
5. Having heard the learned Counsel for the petitioner and the learned Counsel for the respondent and on perusing the petition papers, this Court is of the considered opinion that the objections sought to be raised at the hands of the respondent cannot be sustained. It is not disputed that earlier when a suit was filed by the petitioner, objections were raised at the hands of the respondent that the suit is not maintainable having regard -5- NC: 2024:KHC:18379 CMP No. 135 of 2023 to the arbitration clause contained in the 'Lease Agreement' dated 13.01.2017. Consequently, the arbitration notice was issued by the petitioner. As rightly pointed out by the learned Counsel for the petitioner, the respondent was called upon to confirm the nomination made by the petitioner if it was agreeable for the respondent or option was given to the respondent to nominate. It is also an admitted fact that the respondent has not given any reply to the arbitration notice which was issued by the petitioner on 08.07.2022. Therefore, this Court is of the considered opinion that such technical objections are required to be rejected. This Court has the power to ensure that the agreed terms of the parties are given effect to in accordance with law. If the arbitration clause contains a mandate that both the parties should nominate one Arbitrator each and the two Arbitrators shall in turn nominate the third Arbitrator, who shall preside over the arbitration proceedings, this Court can also make the same arrangements by appointing three Arbitrators -6- NC: 2024:KHC:18379 CMP No. 135 of 2023 and arbitration proceedings can be preside over by one Arbitrator.
6. At this juncture, learned counsel for the respondent sought for a passover of the matter, so that he can secure instructions from the respondent and make submissions regarding the appointment of a sole arbitrator.
7. After securing instructions from the respondent, the learned counsel for the respondent has now submitted that this Court may appoint a sole Arbitrator to decide the dispute.
8. Consequently, this Court proceeds to pass the following:
ORDER
(a) The Civil Miscellaneous Petition is allowed appointing Shri.Somaraju, Retired District Judge, as the sole Arbitrator to enter reference of the disputes between the petitioner and the respondents and conduct proceedings at -7- NC: 2024:KHC:18379 CMP No. 135 of 2023 the Arbitration and Conciliation Centre (Domestic and International), Bengaluru according to the Rules governing the said Arbitration Centre.
(b) All contentions inter se parties are left open for adjudication in the arbitration proceedings.
(c) The office is directed to communicate this order to the Arbitration and Conciliation Centre and to Shri.Somaraju, Retired District Judge, as required under the Arbitration and Conciliation Centre Rules, 2012.
Sd/-
JUDGE DL, KLY CT: JL