Bombay High Court
Rafi Ahmed Hafizullah Chaudhary vs Nandigram Realtors And 2 Ors on 5 February, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:2182
1/5 43 carp 124.23-125.23.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
In Its Commercial Division
Commercial Arbitration Petition No. 124 of 2023
Mr Rafi Ahmed Hafizullah Chaudhary ... Petitioner
v/s.
M/s Seawood Corporation & ors. ... Respondents
With
Commercial Arbitration Petition No.125 of 2023
(Not on Board)
Mr Rafi Ahmed Hafizullah Chaudhary ... Petitioner
v/s.
Nandigram Realtors & 2 ors. ... Respondents
Mr Anand Mishra i/b Ashok M Saraogi for the petitioner.
Mr Nimay Dave a/w. Ms Sonam Mhatre & Mr Amit Mishra, Mr
Utkarsh Pawar i/b. Dhaval Vussonji & associates for the respondents.
CORAM : BHARATI DANGRE, J.
DATE : 5 February 2024 P.C. :
Commercial Arbitration Petition(l) No.124/2023 is filed by the petitioner against the 4 respondents seeking reference of the disputes to an Arbitrator in the wake of an arbitration clause; clause No.38, contained in the Registered Admission cum Retirement Deed dated 20 ::: Uploaded on - 09/02/2024 ::: Downloaded on - 24/02/2024 09:55:11 ::: 2/5 43 carp 124.23-125.23.docx November 2017.
The petitioner claim to be original owner in respect of the property situated in village Nandigram,Tal.Umbergaon,District Valsad whereas respondents have been owners and occupiers in respect of adjoining land. On 3rd April 2017 an MOU is executed between the petitioner and respondent No.1 M/s.Seawood Corporation. On 20 November 2017 the Registered Admission cum Retirement Deed is executed between the respondent No.2 and respondent No.3 as continuing partner alongwith one Rajkumar Shrirao as retiring partner and petitioner being inducted as a new partner in Seawood Corporation.
This document contain clause-38, which is referred to as an arbitration clause requiring the parties to refer the dispute to Arbitrator.
Pursuant thereto on 22 November 2017 an MOU is executed between the petitioner and Nandigram Realtors i.e. respondent No.4 and M/s.Seawood Corporation which also contain an arbitration clause contemplating the disputes arising therefrom to be referred for arbitration. Another MOU dated 16 April 2018 is executed between the petitioner and Seawood Corporation, sans the arbitration clause.
2. Since the dispute arose between the petitioner and the respondents, arbitration was invoked by referring to clause-38 of the Deed dated 20th November 2017 and the MOU dated 22nd November ::: Uploaded on - 09/02/2024 ::: Downloaded on - 24/02/2024 09:55:11 ::: 3/5 43 carp 124.23-125.23.docx 2017 by referring the disputes for arbitration.
Since there was no consensus arrived as regards the appointment of the Arbitrator within the period of 30 days stipulated in the notice invoking arbitration, present petition is filed seeking appointment of sole arbitrator. In the Section 9 petition, the petitioner has sought several reliefs including relief of disclosure of assets as well as payment/ deposit of the amount with liberty of its withdrawal pending the arbitration proceedings.
3. The learned counsel for the respondents strongly assert that there exists no substantial dispute between the parties to be referred for arbitration, however, leaving this contention open to be adjudicated before the Arbitrator in the wake of existence of arbitration clause and since the arbitration has been invoked by the petitioner, the parties are referred for arbitration.
4. Since the learned counsel for the respondents do not dispute about existence of arbitration clause in the 2 documents mentioned above and about the invocation of the arbitration by the petitioner, he expressed his consent over referring of the dispute towards sole arbitrator to be appointed by the Court and thereupon the Section 9 petition being treated as an application under Section 17 before the Arbitrator. This statement is however subject to the condition that the ::: Uploaded on - 09/02/2024 ::: Downloaded on - 24/02/2024 09:55:11 ::: 4/5 43 carp 124.23-125.23.docx issue as regards the stamping of the necessary documents, shall be kept open for determination of the Arbitrator.
5. Commercial Arbitration Petition No.125/2023 which is connected with the same since these are the proceedings instituted by the same petitioner as against M/s. Nandigram Realtors (respondent No.4 in other petition) and Arun Babulal Varma and and Gaurav Varma, Partners of Seawood Corporation seeking interim relief pending the hearing and final disposal of the arbitration petition arising out of Deed of Exchange dated 3rd May 2016 executed at Umbergaon by the petitioner and respondent No.1 which comprise of clause No.11, providing for resolution of the disputes between the parties through the mechanism of arbitration. Even in this case, the petitioner has already invoked arbitration and sought interim-relief under Section 9.
6. The counsel for the petitioner and respondents are at consensus that even this petition shall be permitted to be treated as an application under Section 17, on appointing an Arbitrator for adjudicating disputes arising out of agreement dated 3rd May 2016.
7. Since the respective counsel are agreeable over appointment of sole arbitrator to deal with both the references arising out of the distinct agreements/deeds, by leaving the rights and contentions of the ::: Uploaded on - 09/02/2024 ::: Downloaded on - 24/02/2024 09:55:11 ::: 5/5 43 carp 124.23-125.23.docx respective parties open to be agitated, following order is passed.
8. Mr. Chetan Kapadia, Sr. Counsel is appointed as an Arbitrator to adjudicate the disputes and differences that have arisen between the petitioners and the respondent.
The Arbitrator shall, within a period of 15 days before entering the arbitration reference forward a statement of disclosure as contemplated u/s.11(8) r/w Section 12 of the Arbitration and Conciliation Act, 1996, to the Prothonotary and Senior Master of this Court to be placed on record.
The Arbitrator, shall after entering the reference fix the date of first hearing and issue further directions as are necessary.
The Sole Arbitrator shall be at liberty to decide the fees in consultation with the parties.
All rights and contentions of the parties are kept open.
9. Both petitions stand disposed of.
SMT BHARATI DANGRE, J.
Lata Panjwani, P.S. ::: Uploaded on - 09/02/2024 ::: Downloaded on - 24/02/2024 09:55:11 :::