MAHENDRA SINGH DAHIYA Vs. DINESH NAGORI

JUDGEMENT

(1.) This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of the Arbitrator. The case of the petitioner is that petitioner and respondent were partners in partnership firm M/s. Nagori & Dahiya as per the agreement of admission to partnership dated 1st January 2005, Annexure P-1. The petitioner had agreed to retire from the firm on certain terms and conditions. Accordingly, the M.O.U. dated 2nd March 2007 was singed containing the terms of retirement of the petitioner from the firm. The respondent did not comply with the terms of M.O.U., therefore, the petitioner had initially sent the legal notice to the respondent and thereafter asked the respondent to appoint Arbitrator in terms of Arbitration Clause of the agreement dated 1/4/2007 for amicable settlement of the dispute, but the respondent had not considered the said request hence, the petitioner has filed the present application for appointment of the Arbitrator.

(2.) A reply has been filed by the respondent taking the stand that there is no arbitration clause in the M.O.U. and the arbitration clause in the agreement dated 1/1/2005 cannot be read in the M.O.U. dated 2/3/2007. A further plea was raised that the M.O.U. dated 2/3/2007 was got executed from the respondent under the duress, coercion and is unconscionable contract and therefore, the respondent is not liable to pay in terms of the said M.O.U.

(3.) Learned counsel appearing for the petitioner submits that original agreement dated 1st January 2005 contains the arbitration clause therefore, the dispute is required to be settled in terms of the said arbitration clause. He further submits that the M.O.U. was executed in respect of dispute arising out of the agreement dated 1st January 2005 therefore, no arbitration clause was needed in M.O.U. and even otherwise the arbitration clause can be read into the said M.O.U. by reference and alternatively, the issue if the rights of the parties under the agreement are superseded by the M.O.U., itself is an arbitrable issue and can be examined by the Arbitrator.