INDIAN POTASH LIMITED Vs. BOHRA INDUSTRIES LTD

JUDGEMENT

(1.) This petition has been preferred under Section 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act) to seek the appointment of anindependent and impartial arbitrator to adjudicate the disputes and differenceswhich have arisen between the parties under, and in relation to, the Memorandum ofUnderstanding (MOU) executed between them on 10.09.2008. I may note that theexistence of the said MOU; the arbitration agreement contained therein; the factumof existence of live disputes between the parties, is not in question. The matterhas, however, been argued at considerable length, primarily on the issue whetherthe Petitioner had the locus standi to file this petition under Section 11 of theAct (as the notice invoking the arbitration agreement dated 31.12.2009 was sent bythe Respondent and not the Petitioner) and on the issue that this petition wasfiled prematurely.

(2.) I consider it appropriate to first note the submissions of the Respondent. Thesubmission of learned Counsel for the Respondent, firstly is that it is only thatparty, who invokes the arbitration agreement by serving a notice on the oppositeparty, who is entitled to file a petition under Section 11 of the Act. Therecipient of the notice cannot do so, by relying upon the notice of invocation ofthe arbitration agreement issued by the opposite party. The second submission isthat the period of 30 days (from the date of issuance of the notice of invocationof arbitration agreement) had not expired when the present petition was filed. Itis urged that this petition was premature when filed. Even if the Petitioner didnot agree to the name of the proposed arbitrator as suggested by the Respondent,the Petitioner ought to have made a suggestion of its own, to which the Respondentmight have agreed. The Petitioner, according to the Respondent, could not haveprematurely approached this Court by filing the present petition.

(3.) Another submission of learned Counsel for the Respondent is that the Petitioner has not filed the original arbitration agreement between the parties, and for this reason also this petition is not maintainable.