RAJ BABOO NISCHAL Vs. AJAY KUMAR VERMA

JUDGEMENT

(1.) THE Petitioner has applied under Section 11 (6) of the Arbitration and conciliation Act, 1996 for appointment of a sole Arbitrator, the parties having failed to arrive at a consensus thereon.

(2.) THE Petitioner claims an Agreement dated 1st February, 1991 with the respondent. Under the said Agreement, the Respondent, stated to be desirous of developing his business of sale and purchase of artificial jewellery and silver ornaments under the name and style of M/s Shivam Jewellers, appointed the petitioner as his agent. Under the Agreement, the Respondent was to provide supply and make available all the said goods for sale of the same to be conducted by the Petitioner and for which the Petitioner was to be entitled to commission at the rate of 5% or at any other rate mutually settled between the parties from time to time. The Agreement further provides that the Petitioner shall conduct the business in shop bearing private no. 6 (Back side), forming part of premises no. 83/1a, Punjabi Bagh, New Delhi-110026, owned / rented by the Petitioner. It is further contained in the Agreement that the Respondent shall have no right and interest in the ownership/tenancy rights of the shop in question and the Respondent shall not in any manner interfere or claim any right or interest in the said shop in any manner or capacity whatsoever. The agreement further provides that if either party desires not to continue the business under the said deed for any reason whatsoever, he may give one month's notice to the other party of his intention to discontinue the business. The other terms and conditions of the said Agreement are not relevant for the present purposes save that the Agreement in Clause 12 thereof provides as under.

(3.) THE Petitioner approached the court with a case that the Respondent had paid commission to the Petitioner till 1st April, 2000 and has not paid any commission thereafter; that the Petitioner vide notice dated 16th March, 2001 by a one month's notice terminated the Agreement and also asked the Respondent to ask his representatives, who in terms of the Agreement were reporting at the shop aforesaid to assist in sales, not to so report; that the Respondent however vide reply dated 27th March, 2001 claimed the Agreement dated 1st February, 1991 to be a sham document and having no legal validity and the Respondent further claimed to be a tenant of the Petitioner in the shop in question and at a rent of Rs. 750/- per month; that the said contention of the Respondent was controverted by the Petitioner vide rejoinder notice dated 20th April, 2001 and in which the Respondent was also asked to hand over vacant and peaceful possession of the shop to the Petitioner; that upon the failure of the respondent to so deliver possession, the Petitioner vide letter dated 10th May, 2001 invoked the Arbitration clause and asked the Respondent to concur in the appointment of the sole Arbitrator; that the Respondent however, vide reply dated 21st May, 2001 took a stand that the Arbitrator had no jurisdiction to decide such dispute and further took a stand that in any case, the Agreement was a sham. The Petitioner described his claims against the Respondent for adjudication by arbitrators as relating to the validity of the agreement, possession of the shop, for recovery of arrears of commission and for mesne profits with interest etc.