BALJIT SINGH MALIK Vs. HARICHINTAN SINGH MALIK

JUDGEMENT

(1.) PETITIONER has filed the present objections under Section 34 of Arbitration and Conciliation Act, 1996, assailing the Award dated 10.10.2011 passed by the sole Arbitrator.

(2.) THE facts of the case, as set out by the petitioner are that a suit for partition was filed by the respondent in this Court pertaining to property bearing no.4, Bhagwan Das Road, New Delhi, which was decreed on 30.5.2008 in terms of a settlement arrived at between the parties during Mediation. During the years 2006-2007 petitioner took a loan of Rs.30.00 lakhs from the respondent. On 17.12.2007, a Loan Agreement was executed by which it was agreed between the parties that the entire loan amount would be repaid within one week from the payment of share of sale proceeds to the petitioner. On 08.12.2007 a promissory note was executed by the petitioner for Rs.30.00 lakhs. It was also agreed that in case there would be a dispute between the parties the matter would be referred to the named Arbitrator, Mr.Arvind Nigam, Senior Advocate, in terms of Clause 7 of the Loan Agreement. Clause 7 of the Loan Agreement reads as under:

(3.) THE first submission of learned counsel for the petitioner is that the appointment of a sole Arbitrator, Mr.Sudhanshu Batra, Senior Advocate, was illegal as after entering upon reference, Mr.Arvind Nigam, Senior Advocate, could not have appointed another Arbitrator without consulting the parties. It is further submitted that once Mr.Arvind Nigam had withdrawn himself as an Arbitrator the appointment of Mr.Sudhanshu Batra is not as per law. Elaborating his arguments further Mr.Shandilya submits that parties had appointed Mr.Arvind Nigam, Senior Advocate, as the sole Arbitrator in terms of Loan Agreement signed and executed by the parties. Counsel further submits that as per Clause 7 of the Loan Agreement dated 17.12.2007 Mr. Arvind Nigam, Senior Advocate, was to act as the sole Arbitrator and in case Mr. Nigam was unable to act as an Arbitrator for any reason he was to appoint another Arbitrator. Counsel further submits that a bare reading of the communication dated 2.12.2010, issued by the Arbitrator to counsel for the respondent and the petitioner, would show that Mr. Nigam had called upon the petitioner to appear before him, however, by a subsequent communication dated 10.1.2011, issued by Mr. Nigam to counsel for the respondent and petitioner, Mr. Nigam expressed his inability to act as the sole Arbitrator in the matter and, thus, appointed Mr.Sudhanshu Batra, Senior Advocate, as the Sole Arbitrator in the matter. Counsel next submits that once Mr. Arvind Nigam had entered upon reference in the matter he could have recused himself but he could not have appointed another Arbitrator in terms of Clause 7 of the Loan Agreement. It is thus contended by counsel for the petitioner that the entire proceedings before Sh.S. Batra are void.