HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Arbitration Case No : 8 of 2008
Kishan Mallah
- V/s -
Jabalpur City Transport Services Ltd.
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri Shashank Shekhar for the petitioner.
Shri Vikram Singh for the respondent.
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Whether approved for reporting: Yes / No.
ORDER
21/09/2010
This application has been filed under section 11 of the
Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘Act’),
seeking appointment of an arbitrator for resolution of the dispute
between the parties.
2- An agreement was entered into between the petitioner and
the respondent Company, for the purpose of carrying out Water
Transport Services. Agreement in question is Annexure P/1 and the
petitioner was given the contract for plying boats on the route Gwarighat
to Tilwaraghat, various conditions were stipulated in the agreement. It
seems that while carrying out the work in accordance to the agreement,
certain dispute had risen between the parties and the contract of the
petitioner having been terminated, this application has been filed for
appointment of an Arbitrator.
3- Clause 12 of the Agreement – Annexure P/1 does
contemplate an arbitration clause and it is stipulated in this clause that if
any dispute or difference arises in execution of the agreement, the same
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shall be settled by reference to a sole arbitrator, namely the
Commissioner, Jabalpur Division, Jabalpur in accordance to the
provisions of the Act. It seems that during the execution of the contract,
certain other contracts were given for plying of the boats in the area and
there were allegations of improper maintenance of time and breach of
conditions by the petitioner. Even though the petitioner has refuted the
aforesaid, facts indicate that the contract was terminated and, therefore,
petitioner has filed this application.
4- Having heard learned counsel for the parties and on
consideration of the objections raised by the respondents, it is seen that
the company in question is a registered company, having its registered
office in the First Floor, Red Cross Building, Collectorate Premises,
Jabalpur. Share capital of the company is divided between Jabalpur
Development Authority and the Municipal Corporation, Jabalpur and it
seems that the Collector is one of the Directors of the Company.
However, records indicate that when the dispute had risen, petitioner had
submitted various objections to the Collector, Jabalpur and the Collector
by an order-dated 12.10.07 – Annexure P/3, decided the same and
rejected the claim of the petitioner. Aggrieved by such rejection and by
contending that his right under the Agreement is being taken away in an
improper manner, petitioner had filed this application.
5- Now, from the return filed by the respondent it transpires
that after orders were passed by the Collector vide Annexure P/3 on
12.10.07 and when the matter was pending before this Court in the
proceeding initiated by the petitioner under section 11 of the Act, against
the order passed by the Collector, petitioner himself filed an appeal
before the Commissioner, Jabalpur Division, Jabalpur – the named
Arbitrator as per the Agreement. This application under section 11 of the
Act, was filed by the petitioner before this Court on 22.1.08 and during
the pendency of this application, Commissioner, Jabalpur Division has
considered the entire aspects of the matter on the appeal filed by the
petitioner himself before the Commissioner, who vide order-dated
18.3.2008 – Annexure P/4, has recorded a finding that the order passed
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by the Collector on 12.10.07 is legal and proper, it does not warrant any
interference, petitioner’s termination of contract is legal and the finding
of the Collector with regard to breach of contract is upheld by the
Commissioner.
6- Now, when the Commissioner, who himself is the named
arbitrator in the Arbitration Agreement, has decided the issue by a
speaking order-dated 18.3.2008 and when this order is passed on an
appeal filed by the petitioner himself, in the light of the adjudication
already made, petitioner is now required to challenge the order-dated
18.3.2008 by resorting to the remedy available to him under law. Now,
this Court cannot appoint an Arbitrator for the purpose of adjudication of
the dispute as by virtue of the appeal filed by the petitioner before the
Commissioner himself, who is the named Arbitrator as per the
Agreement, a decision is rendered by the Arbitrator vide order-dated
18.3.2008 – Annexure P/4, therefore, the provision of the Arbitration
Agreement stood exhausted and now no further reference can be made to
an Arbitral Tribunal for resolution of this dispute, which is already
decided by the arbitrator on the basis on appeal filed by the petitioner.
7- In that view of the matter, now this Court does not find any
ground to refer the dispute to an arbitrator, as the dispute is already
adjudicated by an authority, which is the named arbitrator in the
agreement.
8- Accordingly, finding no case for appointing an arbitrator
now in these proceedings, this application is dismissed with liberty to the
petitioner to assail the order passed by the Commissioner, Jabalpur
Division, Jabalpur vide order-dated 18.3.2008 – Annexure P/4 in
accordance with law before an appropriate authority or forum.
9- Application stands dismissed with the aforesaid liberty.
( RAJENDRA MENON )
JUDGE
Aks/-