Indian Kanoon - Search engine for Indian Law

6. Sometime in the year 2016, the respondent filed Arbitration Petition bearing No. 799 of 2016 under Section 9 of the Arbitration Act before this Court inter-alia praying for various interim measures. During the pendency of the said arbitration petition filed by the respondent, the parties exchanged the names for appointment of the sole arbitrator. It is the case of the respondent that both the parties agreed to the name of Mr. Vishal Kanade, Advocate as the sole arbitrator on 14th September, 2016. This Court appointed Mr. Vishal Kanade, Advocate as the sole arbitrator by consent of parties to decide the dispute between the parties arising out of the agreements along with the extensions.

17. Dr. Birendra Saraf, learned Counsel for the respondent on the other hand invited my attention to the letter dated 12th September, 2016 addressed by the petitioner's advocate to the respondent's advocate regarding the oral agreement arrived at between the parties on 8 th September, 2016 when the Arbitration Petition No. 799 of 2016 had appeared on board of S.J. Kathawalla, J. without prejudice to the right and contentions of the petitioner herein. The petitioner had suggested three names for appointment of one of them as the sole arbitrator. It was mentioned in the said letter that if the respondent herein was not agreeable then both by consent to appoint one of these names as the sole arbitrator.

59. In so far as the issue raised by the petitioner that the appointment of the learned arbitrator by this Court on 14th September, 2016 in Arbitration Petition No.799 of 2016 is nullity on the ground that the respondent being the Government of State of Israel and being party to the arbitration agreement, the arbitration proceedings would fall under Section 2(1)(f) of the Arbitration Act and thus only Chief Justice of India or his designated could appoint an arbitration under Section 11(9) of the Arbitration Act is concerned, I shall now refer to some of the correspondence exchanged between the parties prior to the date of the order dated 14 th September, 2016 passed by this Court appointing Mr. Vikas Kanade, Advocate as the sole arbitrator. It is not in dispute that the respondent through his advocate's notice dated 4th April, 2016 while invoking arbitration agreement recorded in clause 19 suggested three names. In the said notice, the respondent had not suggested the name of Mr. Vishal Kanade, Advocate as one of the arbitrator to the petitioner. The petitioner did not annexe all the correspondence exchanged between the parties regarding appointment of a sole arbitration in the arbitration petition.

65. A perusal of the record clearly indicates that in the arbitration petition, the petitioner did not disclose all the correspondence entered into between the parties prior to the date of the order dated 14 th September, 2016 passed by this Court in Arbitration Petition No.799 of 2016 including the letter dated 12th September, 2016 issued by the petitioner through their advocates to the learned advocates representing the respondent, letter sent by email by the respondent's advocate to the petitioner's advocate on 13 th September, 2016 and by the petitioner's advocate to the respondent's advocate on the same date confirming the appointment of Mr. Vishal Kanade, Advocate as the sole arbitrator. It is thus clear that the parties had 28 carbp-758.2019.doc already agreed to the appointment of Mr. Vishal Kanade, Advocate as the sole arbitrator prior to the date of 14 th September, 2016 when the said order was passed by this Court in Arbitration Petition No. 799 of 2016.