USAE EQUIPMENT PRIVATE LIMITED Vs. KRISHNA SHANKER TRIPATHI

JUDGEMENT

(1.) The petitioner has filed the present petition under Section 11 of the Arbitration and Conciliation Act, 1996 inter alia praying that this Court may be pleased to appoint an Arbitrator for adjudication of the disputes that have arisen between the parties in respect of the USAE Equipment Private Limited Employment Agreement dated 18.04.2011 (hereafter "the Agreement ).

(2.) Mr. Dayan Krishnan, the learned senior counsel appearing for the petitioner drew the attention of this Court to the arbitration clause contained in the Agreement and submitted that although in terms of Clause 14.3 of the Agreement, the petitioner has the right to appoint an arbitrator, the petitioner would have no objection if an independent arbitrator is appointed by this Court. Article 14 of the Agreement is set out below:-

(3.) There is no dispute as to the existence of the aforesaid Agreement. However, the learned counsel appearing for the respondent submits that the arbitration clause is invalid as according to him it lacks mutuality of contract and, thus, is unenforceable. He referred to the decision of this Court Lucent Technologies Inc. v. ICICI Bank Limited & Ors.: in support of his contention that an agreement which is unilateral and lacks mutuality is not enforceable and would also be void under Section 28 of the Indian Contract Act, 1872. In addition, the learned counsel also referred to the decision of the Supreme Court in Dharma Prathishthanam v. Madhok Construction (P) Ltd., 2005 9 SCC 686 and on the strength of the said decision contended that one party cannot usurp the jurisdiction and proceed to act unilaterally; therefore, a unilateral appointment and reference would be illegal.