SURESH CHANDER TAPARIA Vs. KISHANLAL BAHETI

JUDGEMENT

(1.) These arbitration applications have been filed by the applicants under Section 15 read with Section 14 & 11 of the Arbitration and Conciliation Act, 1996 ("the Act") for appointment of Sole Arbitrator on account of the respondents failing in appointing the Arbitrator in terms of the arbitration clause in the contract.

(2.) The relevant facts are that on the strength of the power of attorney executed by one Shri Govind Das Baheti, Shri Sushil Kumar Damani executed two agreement to sell dated 13.96; one in favour of the applicant-Suresh Chandra Tapariya and another in favour of the applicant-Smt. Krishna Devi Tapariya of the property originally owned by Smt. Muli Devi Baheti in respect whereof she had executed a Will and appointed Shri Govind Das, as executor. Pursuant to the agreement to sell executed as aforesaid, the sale deed could not be executed on account of deteriorating health of Shri Govind Das, who later expired on 30.10.96. A dispute having been arisen between the parties, the applicants resorted to arbitration clause (Clause no.8) provided in the 'Agreement to Sell' executed between the parties. Complying with the arbitration clause, the applicants served the non-applicants with the notice dated 6.9.99 whereby Shri Padam Singh Verma was appointed arbitrator on his behalf. Shri Padam Singh Verma entered into reference and the proceedings before Sole Arbitrator commenced after appearance of the counsel for the non-applicants. Unfortunately, Shri Padam Singh Verma expired on 20.10.01. The vacancy was later on filled up by appointment of Shri Pyare Mohan Begerhotta, Retired District Judge, before whom the arbitration proceedings further continued. However, Shri Begerhotta later on permanently shifted to United States of America and therefore, vide order sheet dated 8.9.13, resigned from the proceedings. In these circumstances, the applicants vide letter dated 24.5.13 appointed Mr. Justice Shri Karni Singh Rathore, former judge of Rajasthan High Court as arbitrator but the counsel for the non-applicants did not agree for the same and vide letter dated 26.13 suggested the name of Shri Manak Mohta, former judge of Rajasthan High Court as Sole Arbitrator, to which the applicants consented but no response was received from the non-applicants thereafter. Hence, these applications.

(3.) The factual position regarding existence of the arbitration clause in the contract, the appointment of the arbitrator, the commencement of the arbitration proceedings and termination of mandate of the arbitrator on account of withdrawal of the arbitrator appointed from the office for the reasons assigned is not disputed by the non-applicants. However, learned counsel appearing for the non-applicants contended that the agreement to sell containing arbitration clause was executed by Shri Sushil Kumar Damani on the strength of the power of attorney executed by Shri Govind Das in his favour, which as a matter of fact, already stood terminated on account of revocation of power of attorney by the executor Shri Govind Das on 18.12.95 and thus, the agreement to sell executed by the power of attorney holder in favour of the applicants herein in respect of the disputed property does not create any right in their favour and the arbitration clause contained therein cannot be enforced.