BHUVANESHWAR SHARMA Vs. GIRNARSOFT AUTOMOBILES PVT. LTD.

JUDGEMENT

(1.) THE present application has been filed by the applicant for the appointment of an independent Arbitrator/Arbitral Tribunal of sole Arbitrator under Section 11 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the said Act'), to adjudicate and settle the disputes between the parties.

(2.) THE short facts, giving rise to the present application, are that the applicant had joined the services of the respondent -company as the Head - Accounts & Finance, as per the employment agreement, and the service bond dated 1/3/2013, at Annexure -1 and 2 respectively. The applicant being not comfortable with the respondent submitted his resignation on 11/4/2013, and continued to serve upto 14/5/2013, in view of the condition for giving one month's notice as per service bond. Thereafter, the applicant served a legal notice dated 18/5/2013, calling upon the respondent to pay the applicant his due salary and relieve him from the company. The respondent, in response to the said notice, gave reply through its Advocate on 27/5/2013, calling upon the applicant to withdraw the legal notice and join the office within seven days from the receipt of the reply. Thereafter, it appears that the respondent vide letter dated 16/9/2013 gave a legal notice under Section 11 of the said Act appointing Shri Rahul Kamwar, Advocate as the sole arbitrator to resolve the disputes between the parties. According to the applicant, the applicant came to know about the said appointment only when the Arbitrator issued the notice of appearance on 21/11/2013 (Annexure -6), calling upon the applicant to attend the preliminary meeting held on 8/12/2013. The applicant having appeared before the Arbitrator raised the objection against the Constitution. The applicant thereafter had approached this Hon'ble Court by filing S.B. Civil Writ Petition No. 21106 of 2013 under Article 226 of the Constitution, however the same was withdrawn by the applicant. The applicant thereafter filed the present application seeking appointment of arbitrator under Section 11 of the said Act. The application has been resisted by the respondent by filing the reply and raising the preliminary objection as regards the maintainability of the application.

(3.) HAVING regard to the submissions made by the learned counsels for the parities, and to the documents on record, in the light of the provisions contained in Section 11 of the said Act, it appears that this is a case where the parties had agreed to resolve the disputes or difference in accordance with the said Act, though the sole Arbitrator to be appointed by the respondent -company as per condition No. 6 of the service bond dated 1/3/2013. On the dispute having arisen between the parties, the respondent pursuant to the said clause has appointed Shri Rahul Kamwar, an Advocate as the Arbitrator. It is pertinent to note that the applicant has not given any notice calling upon the respondent to appoint any other Arbitrator before filing the present application, and therefore in the opinion of the Court, the present application under Section 11 of the said Act, would not be maintainable. In the instant case, the parties having agreed on a procedure for the appointment of Arbitrator as per Clause 6 of the service bond, the Court could not appoint the Arbitrator unless the circumstances as contemplated in sub -section (6) of Section 11 arise. Such being not the issue in the present case, the present application as such is not maintainable in the eye of law. The Apex Court in case of The Iron and Steel Company Ltd. vs. M/s. Tiwari Road Lines, : AIR 2007 Supreme Court 2064 (1) has aptly dealt with the situation in para 8 of the decision, which reads as under: -