Madras High Court
M/S.Sugesan Transport Pvt. Ltd vs M/S.E.C.Bose And Company Private ... on 24 January, 2020
Author: M.Sundar
Bench: M.Sundar
O.P.No.1 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.01.2020
CORAM
THE HON'BLE MR.JUSTICE M.SUNDAR
O.P.No.1 of 2020
M/s.Sugesan Transport Pvt. Ltd.
Rep. by its Director
Mr.Kanthibhai Rajendra Sheth
No.7C, Second Canal Road, Gandhi Nagar
Adyar, Chennai – 600 020. .. Petitioner
Vs.
M/s.E.C.Bose and Company Private Limited
'ECB Towers',
No.13A, St. George Terrace
P.S.Hastings, Kolkata – 700 022.
Also at
Bose Niloy
26, Baillygunge Park, Kolkatta. .. Respondent
This Original Petition filed under Section 11 (6) of the Arbitration and
Conciliation Act, 1996, praying to appoint an arbitrator to resolve the disputes
arising out the Memorandum of Understanding dated 11.12.2015 between the
petitioner and respondent and pass such further or other orders as this Hon'ble
Court may deem fit in the facts and circumstances of the case and thus render
justice.
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O.P.No.1 of 2020
For Petitioner : Mr.Nithyaesh Natraj
For Respondent : Mr.S.Sathya Narayanan
ORDER
Mr.Nithyaesh Natraj, learned counsel for petitioner and Mr.S.Sathya Narayanan, learned counsel for Interim Resolution Professional (IRP) qua respondent company having been so appointed vide order dated 25.10.2019 made by National Company Law Tribunal, Kolkata Bench in CP (IB) No.1388/KB/2018 are before this Court.
2. Instant 'Original Petition' (hereinafter 'OP' for the sake of brevity) under Section 11 of 'The Arbitration and Conciliation Act, 1996 (26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity, and convenience has become necessary owing to unfortunate demise of Hon'ble Mr. Justice N.V.Balasubramaniam (Retd.), who was the sole Arbitrator constituting the Arbitral Tribunal which had entered upon reference vide arbitral disputes that had arisen between the parties from and out of a Memorandum of Understanding dated 11.12.2015. This Court is informed that last sitting of Hon'ble Arbitral Tribunal was on 26.10.2019 and demise of Hon'ble sole Arbitrator was on 03.11.2019.
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3. The plea now in instant OP is to appoint an arbitrator owing to the aforesaid trajectory to resolve the arbitral disputes that have arisen between the parties vide Memorandum of Understanding dated 11.12.2015.
4. In the light of sub-Section 6-A of Section 11 of A and C Act and elucidation of same by Hon'ble Supreme Court vide Duro Felguera principle [Duro Felguera, S.A. versus Gangavaram Port Limited reported in (2017) 9 SCC 729] and Mayavati Trading principle [Mayavati Trading Pvt. Ltd., Vs. Pradyuat Deb Burman reported in (2019) 8 SCC 714] prima facie existence of an arbitration agreement is lone test in petitions with prayers of appointment of arbitrators and therefore, it is not necessary to dilate further on facts or enter upon any debate qua legal aspects of the matter, much less, merits of the matter. Suffice to say that it is open to the Hon'ble Arbitral Tribunal to look into all issues that arise in the light of insolvency proceedings.
5. Hon'ble Tmt. Justice Prabha Sridevan (Retd.), former Judge of this Court, residing at No.7, Krishnaswamy Iyer Avenue, Luz Church Road, Mylapore, Chennai -4 [Mobile No.9444390920], is appointed as sole arbitrator. Hon'ble Arbitrator is requested to enter upon reference, adjudicate the arbitral disputes between the parties and pass an award in accordance with A and C Act. Hon'ble Arbitrator is free to fix arbitral fees and venue. 3/5 http://www.judis.nic.in O.P.No.1 of 2020
6. OP is disposed of on above terms. There shall be no order as to costs.
24.01.2020 Speaking/Non-Speaking order Index : Yes/No Internet: Yes/No vsm Note: Registry is directed to communicate this order to Hon'ble Tmt.Justice Prabha Sridevan, No.7, Krishnaswamy Iyer Avenue, Luz Church Road, Mylapore, Chennai -4 [Mobile No.9444390920], forthwith. 4/5 http://www.judis.nic.in O.P.No.1 of 2020 M.SUNDAR, J.
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