PRIMUS CHEMICALS LTD Vs. GUHA INDUSTRIES

JUDGEMENT

(1.) This is an application under section 11(6) of the Arbitration and Conciliation Act, 1996 (for short the Act) for appointment of an independent Arbitrator. The case of the applicant is that the applicant company had placed the order dated 26-2-1996 and 4-3-1996 for purchase of certain items with the respondent and had paid the advance. In spite of the repeated request by the applicant, the non-applicant had not supplied the items for which the purchase order was given. The arbitration clause provides for appointment of two arbitrators, therefore, the applicant had appointed its arbitrator and requested the non-applicant to appoint their arbitrator but the non-applicant had not appointed their arbitrator. The sole arbitrator appointed by the applicant had conducted the proceeding and passed the award dated 24-11-2003. The said award was challenged by the non-applicant under section 34 of the Act in Misc. Case No. 33/2009 and the learned 2nd Additional District Judge, Ujjain by order dated 21-12-2010 has set aside the award. The applicant company had again sent a letter dated 14-1-2011 for appointment of arbitrator and had appointed his arbitrator but in spite of the receipt of the request within the statutory period of 30 days the non-applicant had not appointed the arbitrator, therefore, applicant has approached this Court for appointment of the arbitrator.

(2.) Learned counsel for the respondent has raised the objection that since the arbitration has been conducted once in terms of the arbitration clause and the award has been set aside, therefore, fresh arbitration is not permissible. He has also raised an objection that the arbitration clause provides for appointment of two arbitrators, therefore, sole arbitrator cannot be appointed by this Court and that the claim of the applicant is time barred, therefore, it is required to be rejected on the ground of delay.

(3.) I have heard learned counsel for the parties and peruse the record. In the present case the arbitration agreement is not in dispute. The arbitration clause of purchase order reads as under :--