MAN MOHAN DHAMU Vs. RAJENDRA SINGH GEHLOT

JUDGEMENT

(1.) The present application has been filed by the applicant under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the said Act'), seeking appointment of the arbitrator .

(2.) In the instant case, it appears that a joint venture agreement was entered into between the present applicant and the original respondent Dr. Rajendra Singh Gehlot (now deceased) (Annexure-1), whereby it was agreed to refer the dispute to the arbitrator. Since the dispute had arisen between the parties, the applicant had called upon the respondent to appoint the arbitrator by giving the notice dated 20/11/2002 (Annexure-5). However, thereafter the applicant filed the suit, seeking permanent injunction against the respondent, which suit was dismissed for default in the year 2004, and thereafter the present application was filed on 19/6/2006. It appears from the file that the present application remained pending for removal of objection for about two years, and was not persuaded by the applicant for two years. The Court thereafter had issued notices to the respondent on 17/10/2008. The respondent has filed the reply objecting to the appointment of arbitrator on the ground that after the dismissal of the suit, the applicant had filed an application under Section 9 before the District Judge, Jaipur, and the same was also dismissed on 9/7/2007 in absence of the applicant and the said fact has been suppressed by the applicant in the present application. It is further contended that the application itself is not maintainable, more particularly when the claim is also barred by law of limitation.

(3.) It is submitted by the learned counsel Mr. Anil Mehta for the applicant relying upon the decision of Apex Court in case of Visakhapatnam Port Trust vs. Continental Construction Company, 2009 4 SCC 546 that the arbitration proceedings are deemed to have commenced on the issuance of the notice by the applicant seeking appointment of arbitrator, and hence it could not be said that the claim of the applicant is barred by law of limitation. He further submitted that merely because the applicant on wrong advise given by the counsel had filed the suit, that should not come in the way of the Court in appointing the arbitrator. However, the learned counsel for the respondent has submitted that not only the application is not legally maintainable, the applicant has also suppressed the material fact regarding filing of proceedings under Section 9 of the said Act. He also submitted that pending the present application, the applicant has also filed another suit in the Court of Additional Civil Judge (Junior Division) No.4, Jaipur City, Jaipur in the year 2014 for permanent injunction, which is pending.