CANDID DRUG DISTRIBUTORS Vs. WANBURY LIMITED

JUDGEMENT

(1.) The Petitioner has applied for appointment of arbitrator U/s.11(6) of the Arbitration and Conciliation Act, 1996 (the Act.).

(2.) The Petitioner initially sued in the competent court in Guwahati. The Respondent challenged the territorial jurisdiction of that Court U/s.21 of the CPC. The Respondent also applied for reference of the dispute between the parties U/s. 8 of the Act. The Court returned the plaint to proper Court for filing upon holding that it did not have territorial jurisdiction. For lack of jurisdiction it did not refer the dispute to arbitration. The suit has remained at that. It has not been filed in any other Court. It has not been adjudicated or decided. The dispute between the parties has accordingly not been adjudicated either by the judicial pronouncement or by the mode of alternative dispute resolution.

(3.) The Petitioner conceded that the arbitral forum is the appropriate forum. Consequently the Petitioner sought appointment of the arbitrator. When that was done the Respondent has contested and challenged that application. The Respondent claims that once the Petitioner files a suit it would not be entitled to then refer the dispute to arbitration by itself. Mr. Dhond argued that if the Petitioner sued and the Respondent did not challenge the judicial forum the Court would not refer the suit for arbitration U/s.8 of the Act. In that case the suit would proceed to hearing. However, in this case the Respondent has already taken out such an application. The Petitioner only accepts the legal position. If the Petitioner has sued in the Court having territorial jurisdiction and the Respondent had taken out application U/s.8 for reference of the dispute to arbitration the Petitioner may have conceded that fact and the dispute would have been so referred. Consequently the Petitioner may also concede such fact after the plaint is returned to proper Court for filing but has not been either disposed off by hearing or by dismissal.