SISODIYA POLYMERS Vs. BALKRISHNA INDUSTRIES LTD

JUDGEMENT

(1.) Heard learned counsel for the respective parties.

(2.) The petitioner, by this application, seeks an appointment of the sole arbitrator. The petition is filed on 9-1-2006. Copy of memorandum of understanding dated 7-3-2003 is produced on record. According to the petitioner, this agreement is entered into between the parties at Mumbai. The petitioner is carrying the business of manufacturing of tyre, tubes and flaps at Aurangabad. Plant of the petitioner is situated at village Waluj, aurangabad. The petitioner is also outsourcing from Bangalore, Silvasa and Kerala. It is further averred in the petition that the respondents have agreed to provide 4-5 kneaders, in due course of time along with 1 or 2 suitable mills for the purpose of mixing of compound, remill on the basis of the job work. The petitioner performed their part by purchasing and installing required equipments, building shed etc. at their own costs in their premises, where sufficient space is available. According to the petitioner, the petitioner has complied with the terms of the memorandum of understanding entered into between the parties on 7-3-2005. It is alleged that the respondents did not perform their part of the agreement. The respondents have not provided three new kneaders. According to the petitioner, the respondents have supplied two old kneaders of inferior quality, resulting into breakdown. According to the petitioner, the kneaders supplied by respondents have been rendered useless within eight days. The petitioner has also alleged short comings in the drive gear of the kneaders supplied by respondents to the petitioner. Notice was addressed to respondents on 25-10-2005, by which the petitioner sought an appointment of the Arbitrator for settlement of the dispute and also suggested name of Advocate shri. D. S. Bharuka, to be the Sole Arbitrator. This notice has been replied by respondent No. l. By this communication dated 28-10-2005, contentions raised in the notice dated 25-10-2005 have been disputed by the respondents. According to respondents, agreement between the parties was entered into at Mumbai. Respondents by its communication dated 28-10-2005 disputed the name of Shri. D. S. Bharuka, Advocate as a Sole Arbitrator. However, no name of any Arbitrator was suggested by respondents.

(3.) On behalf of respondents, one shri. Bharat Shantilal has filed affidavit in reply. It has been pointed out in the reply that name of Justice Zunzunwala (former Judge of the high Court) was suggested to be an Arbitrator between the parties. It is referred in paragraph no. 3 of the counter affidavit that application under Section 9 of the Arbitration and conciliation Act, 1996 ("act of 1996") was filed by the respondents, which is registered as marji 375 of 2005. Grievance is raised that the memorandum of understanding is entered into between the parties at Mumbai and head office of the respondents company is also situated at Mumbai. According to respondents, application should have been submitted at mumbai or this application be transferred to mumbai.