RAJIV VYAS Vs. JOHNWIN

JUDGEMENT

(1.) THIS is an application under section 11 of the Arbitration and Conciliation Act, 1996 for the appointment of a suitable arbitral tribunal. Every attempt, every gesture on the applicant's part to have the disputes referred to a conciliator and thereafter if necessary to arbitration has been rejected by the respondents on hypertechnical grounds. The applicant has agreed to the name of a conciliator suggested by the respondents. Though the arbitration clause requires a reference of the disputes to an arbitral tribunal consisting of three arbitrators the applicant has agreed to the disputes and differences being referred to the sole arbitration of the arbitrator appointed by the respondents. Even this suggestion was rejected although it was made clear that this would be without prejudice to the respondents' rights and contentions and their right to challenge this order.

(2.) THE application is based on an arbitration clause contained in a Shareholder Agreement entered into between the parties in the year 2007. I am saved the exercise of determining the issue as to the existence of the arbitration agreement as this question has already been determined by an order and judgment of this Court dated 6th July, 2009 in Arbitration Petition No. 222 of 2008 which was taken out by the applicant for reliefs under section 9 of the said Act. It was contended on behalf of the respondents in that case that the arbitration clause was incorporated in a document which was not a concluded agreement between the parties. Consequently, no part of the agreement including the arbitration clause therein came into existence. THE learned judge rejected the contention and held that the said agreement is complete and binding between the parties and the arbitration clause is valid, subsisting and binding between the parties. It is not disputed that I am bound by the judgment. Needless to add that the result of this application may well require to be reviewed in the event of the respondents succeeding in the appeal filed against the said judgment. I proceed therefore on the basis that there exists between the parties a valid arbitration agreement.

(3.) I will presume the submission to be well founded. Indeed I must in view of the judgment of a learned single judge of this Court dated 19th March, 2008, relied upon by Mr. Jagtiani in the case of Tulip Hotels Pvt. Ltd. and anr. vs. Trade Wings Ltd. and ors. [2010(1) Mh.LJ. 73], Application for Appointment of Arbitrator No. 4 of 2007. The arbitration clause in that case also required the parties to first try and resolve the disputes through the intervention of a conciliator and only in the event of the same being unsuccessful were the parties entitled to refer the matter to arbitration. The learned judge held as under :-