MOULANA ASAD MADANI Vs. ABDUL HAFIZ

JUDGEMENT

(1.) By this Judgment I shall dispose of an application under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act') seeking the appointment of a Presiding Arbitrator, in respect of dispute which has arisen between the Applicants and the Respondent. Briefly stated, the Applicants claim 50 per cent rights over a partnership concern in which the remaining 50 per cent rights vest in the Respondent. Disputes having been arisen between the parties and legal action has been initiated by them.

(2.) Ironically, the first to issue a notice seeking the appointment of an Arbitrator is the Respondent who addressed a notice to the several Applicants in terms of the communication of Sanjay Kumar Kumar, Advocate dated 3.2.2005. On 27.7.2005 in response to this notice the applicants had conveyed the names of three suggested or proposed Arbitrators. However, in that very month the Respondent filed Suit No. OC 92 of 2005 in the Court of Civil Judge, JR. Division, Islampur, Dist. Uttar Dinajpur. The Applicants herein filed a Written Statement dated November, 2005 in those proceedings. On a cursory perusal of the Written Statement it appears that the Applicants did not either lodge any protest or objection to the maintainability of the suit in view of the Arbitration Agreement between the parties, or pleaded that the parties should be referred to arbitration.

(3.) This is categorically what Section 8 of the Act envisages. Learned counsel for the Applicants is justified on drawing attention to the fact that the present application under Section 11 of the Act has been filed prior to the filing of that Written Statement. This would no doubt indicate the resolve of the Applicants to have their disputes adjudicated by arbitration. It, however, does not dislodge the responsibility of the Applicants to take appropriate action under Section 8 of the Act especially where it is their say that disputes should be adjudicated through arbitration and not through the normal remedy and procedure of a Civil Court.