SPICE TOPAZ COMPANY PVT LTD Vs. OM PRAKASH

JUDGEMENT

(1.) HEARD learned counsel for the parties on the application u/s 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') for appointment of Arbitral Tribunal for adjudication of the disputes and differences between the parties in respect of Agreement dated 2.4.2005 (Anx.3) for construction of multi storey building. The aforesaid Agreement dated 2.4.2005 contained Arbitration Clause 18.

(2.) SUBMISSION of counsel for the Applicant is that to resolve the dispute, the Applicant gave notice dated 30.1.2008 for reference of the dispute and to constitute Arbitral Tribunal but the Non-applicants have failed to act as per Clause 18. In para 22 of the notice, the Applicant has mentioned that as per Clause 18, Shri Ashok Kumar Dubey and Shri J.P.Sharma, Advocates have to be appointed as the Arbitrators for resolving the dispute and further that Shri Ashok Kumar Dubey was the Advocate for the Non-applicants No.1 and 2 in proceeding u/s 9 of the Arbitration and Conciliation Act, 1996, therefore, he was disqualified to be appointed as Arbitrator. However, the Applicant shown its willingness for appointment of Shri J.P.Sharma, Advocate as the Arbitrator and further asked the Non-applicants to appoint any other Arbitrator as per Clause 18. In support of the aforesaid, counsel placed reliance on para 22 of National Insurance Company Limited V. Boghara Polyfab Private Limited (2009) 1 SCC 267.

(3.) WITH the consent of counsel for both the parties, instead of Arbitral Tribunal, I appoint Mr.Justice J.R.Goyal, retired Judge of this Court as the Sole Arbitrator, and the matter is referred to him for resolving the disputes between the parties, arising out of the Agreement dated 2.4.2005. The Sole Arbitrator will fix his fee according to the Arbitration Manual. All objections would be open to be raised by the Non-applicants before the Sole Arbitrator. The application is allowed.