TATA CAPITAL LIMITED Vs. VIJAY DEVIJ AIYA

JUDGEMENT

(1.) These Applications have been filed under Sec. 11 of the Arbitration and Conciliation Act, 1996 ("the Act"), seeking appointment of an arbitrator in connection with disputes and differences that are said to have arisen between the parties under a Loan Agreement dated January 31, 2016 and another top-up Loan Agreement dated October 31, 2017 (collectively, the "Agreement"). The arbitration agreement is contained in Clause 12.18 in each of the Applications (found at Page Nos. 44 and 46 respectively).

(2.) Since there is trenchant opposition to these Applications being allowed in view of the language contained in the arbitration agreement, the provisions of the arbitration agreement (identical for both Applications) are extracted below:-

(3.) It will be seen from a plain reading of the foregoing that at the threshold, the provision contains an unequivocal agreement between the parties to resolve their disputes and differences by reference to arbitration in Mumbai. Indeed, the arbitration agreement entails a unilateral appointment of an arbitrator, which is a facet now clearly declared as being untenable and in conflict with the foundational principle of independence and impartiality of the arbitrator. The Applicant fairly states that in view of this element in the provision, he would leave it to this Court to appoint an arbitrator.