NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1794 OF 2009
(Arising out of SLP(C) NO. 10902 of 2008)
M/s Kailash Store ........ Appellant
Versus
Union of India ........Respondent
ORDER
Leave granted.
2) The appellant calls in question the correctness or otherwise of the
judgment and order passed by the High Court of Delhi in Arbitration
Case No. AA No. 339 of 2007 dated 28th day of February, 2008. By
the impugned judgment, the court while allowing the petition, has
directed Divisional Commercial Manager of Railways to appoint a
person as Arbitrator within thirty days from the date of order and has
further directed that the Arbitrator so appointed shall visit the site in
presence of both the parties and shall physically verify if there was
occupation of any part of the parking site by old and unclaimed
vehicles, at the time of auction of the parking site. The court has
1
further observed, that, no other dispute is referred to the Arbitrator
except the dispute regarding 20% less area allegedly handed over to
the appellant/applicant.
3) The appellant asserts that, the court has erred in adjudicating the
dispute raised by the applicant/appellant, while allowing the petition
under Section 11(6) of Arbitration and Conciliation Act, 1996, here
in after for the sake of brevity and clarity referred to as `Act 1996′,
without referring all the points of disputes to the Arbitrator for
adjudication. It is further submitted, that, the court while exercising
its powers under Section 11(6) of the Act, ought not to have directed
the respondent to appoint a fresh Arbitrator, when the respondent had
failed and neglected to appoint an Arbitrator, despite the fact that the
appellant had invoked the arbitration clause in the agreement and
instead should have appointed a qualified Arbitrator to adjudicate the
dispute between the parties. Lastly, it is stated that, the court ought
not to have restricted the point of dispute to a particular issue instead
of leaving open to the applicant to get all the dispute raised by him in
the petition to be adjudicated before the Arbitrator. However, at the
time of hearing of the appeal, the learned counsel for the appellant
submits, that instead of deciding all the legal issues raised in the
2
appeal, this court may appoint one Shri D.R. Bhatia, former Joint
Registrar of Delhi High Court as the sole Arbitrator and direct the
Arbitrator to resolve all the disputes between the parties as envisaged
under the agreement.
4) The learned counsel for the respondent has no objection to the
suggestion made by the learned counsel for the appellant.
5) In view of the above, without going into the legal issues raised by the
appellant, as agreed between the parties, we appoint Shri D.R. Bhatia
as the sole Arbitrator to decide all the disputes raised by the appellant
in the petition filed under Section 11 of the Act as expeditiously as
possible and, at any rate, within a outer limit of six months from the
date of receipt of copy of this court’s order after issuing notice to both
the parties. The Arbitrator’s fee is fixed at Rs. 50,000/- (Rupees Fifty
Thousand only) as agreed by the appellant.
6) The appeal is disposed of accordingly.
…………………………………J.
[ TARUN CHATTERJEE ]
…………………………………J.
[ H.L. DATTU ]
New Delhi,
March 23, 2009.
3