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IAAP/32/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
PETN.
UNDER ARBITRATION ACT No. 32 of 2010
=========================================================
OMKAR
ENGINEERING COMPANY THROUGH BHIMJIBHAI DANABHAI SO - Petitioner(s)
Versus
MAN
INFRA VENTURES LIMITED - Respondent(s)
=========================================================
Appearance
:
MRCHIRAGBPATEL
for
Petitioner(s) : 1,
MR BY MANKAD for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 25/02/2011
ORAL ORDER
1. The
petitioner seeks appointment of an Arbitrator for resolving the
dispute between the petitioner and the respondent.
2. Under
an agreement reduced to writing on 21.2.2008 between the authorised
signatories of the petitioner and the respondent duly signed by their
authorised signatories, the petitioner company agreed to carry out
certain civil works for and on behalf of the respondent Company. The
description of which is to be found on the said agreement. During the
course of execution of such works, dispute arose between the parties.
It is the case of the petitioner that it had discharged its
obligations under the agreement. Delay in execution of the work, if
any, was on account of foundation work which is beyond its control
and attributable to the respondent in carrying out its obligations
against the agreements. Despite this, the respondent did not release
the payment for the work done. The petitioner Company, therefore,
issued a notice dated 12.2.2010 and demanded the respondent Company
to settle the disputes within 30 days, failing which, the petitioner
may seek reference to an Arbitrator. It is the case of the petitioner
that no reply was received to such a notice. The petitioner Company,
therefore, issued another notice dated 7.6.2010 calling upon the
respondent Company to agree to one of the three names suggested to be
appointed as sole Arbitrator, failing which, it would move the High
Court for appointment of an Arbitrator.
3. It
is not in dispute that the agreement between the parties contained an
arbitration clause which reads as under :-
Arbitration
: Any dispute or difference
arising out of contract shall be settled amicably by mutual
discussion and negotiation. If that fails, such disputes or
differences shall be settled as per provisions of Indian Arbitration
Act, 1940 (X of 1940). The venue of such arbitration will be INDORE
city.
4. The
respondent Company does not dispute having received notices from the
petitioner. Counsel, however, submitted that the P.F. department has
issued a prohibitory order preventing the Company from making any
payment.
5. At
this stage, I am only concerned with the appointment of an
Arbitrator. What defences that the respondent Company may raise
before the Arbitrator is not the subject matter of consideration in
this application. When I find that there is a clear arbitration
clause between the parties and when the petitioner had issued a
notice calling upon the respondent to appoint an Arbitrator in terms
of the said agreement and within the time indicated, the respondent
did not conquer with any of the names suggested, in terms of Section
11 of the Arbitration and Conciliation Act, 1996, this is a fit case
where power should be exercised for appointment of an Arbitrator.
6. In
the result, Hon’ble Mr. Justice C.K. Buch (Retd.) is appointed as a
sole Arbitrator to resolve all disputes between the parties arise out
of the agreement arises dated 21.2.2008. Though the agreement
envisages sittings of such arbitration proceedings at Indore, I do
not find anything in the agreement which, upon consent between both
the sides, would prevent such sittings being conducted at Ahmedabad
or any other convenient place mutually agreed.
7. With
the above direction, this petition is disposed of.
[Akil
Kureshi, J.]
mrpandya
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