Ashwani Kumar Wadhwa vs Smt. Adarsh Wadhwa

Ms. Usha Mehra, J.—Petitioner, Shri A. K. Wadhwa, entered into a partnership with respondent Smt. Adarsh Wadhwa to carry on the business of sale, purchase and distribution of drugs, etc. under the name and style of M/s. Adarsh Distributors w.e.f. 8th April, 1985. The said partnership came to an end on 31st March, 1988 and Dissolution Deed was executed on the same date between the parties. It was the terms of the Dissolution Deed dated 31st March, 1988 that in case of any dispute between the parties the matter was to be adjudicated upon by Sh. S. K. Wadhwa, Sole Arbitrator. It was also term of the Dissolution Deed that accounts of the partnership firm were to be settled subject to confirmation of the accounts balances by the debtors and creditors of the partnership firm. Physical verification of the stock, all the claims from the suppliers like damages, commissions, debit/credit notes, disputed claims, etc. settled and confirmed and the Arbitrator was to find out damages suffered by the firm due to negligence in the accounts of the Company.

That it is the grievance of the petitioner that inspire of legal notice served on the respondent she has not settled the accounts instead she has taken a categorical stand that nothing is due to the petitioner and it is the petitioner who is infact to pay sum of Rs. 44,2166.39 paise plus scooter and telephone. She is also not joining to refer the disputed matter to the Sole Arbitrator mentioned in the agreement. Hence the petition.

The respondent in her reply took the stand that it is the petitioner who was liable to make the payment to the respondent to the tune of Rs. 44,216.39 paise and he was liable to return the scooter and telephone. She denied that there was any dispute regarding rendition of accounts or that any amount is to be paid by the respondent to the petitioner.

This court vide order dated 21st February, 1991 appointed Sh. S. K. Wadhwa, the named Arbitrator, as the Sole Arbitrator to adjudicate upon the disputes between the parties with direction to make and publish his Award within the statutory period and the suit was disposed of.

By way of present application it is contended by the petitioner that the sole Arbitrator Sh. S. K. Wadhwa vide his letter dated 27th May, 1991 has expressed his inability to act as the Arbitrator due to exigency of his services, hence another person may be appointed as the Arbitrator, because the Arbitrator appointed by this court has vacated the office and the vacancy be filled up. Notice of this application was issued to the respondent. Respondent was represented by Sh. Rajender Kumar, Advocate, who appeared in court on 5th May, 1993 and took time to file reply. But thereafter since 3rd October, 1994, no one appeared on behalf of the respondent through case was adjourned from time to time. Hence respondent was proceeded ex parte.

I have heard the learned Counsel for the petitioner and perused the record. The Dissolution Deed stipulates the Arbitration Clause. The law is settled that once the Arbitration Clause is not superseded and if the Arbitrator vacates the office then the vacancy caused by the inability of the Arbitrator to act or on his vacating the office the same can be filled either as per the term of the agreement or by the order of the court. Since in this case the agreement does not stipulate, how the vacancy is to be filled up, Therefore, by this application the petitioner wants this court in exercise of its discretion to fill up the vacancy. The disputes still subsists and are liable to be referred to an Arbitrator.

Since the named Arbitrator has shown his inability, Therefore, I appoint Mrs. C. M. Chopra, Advocate, 22, Lawyers Chamber, Delhi High Court, New Delhi, as the Sole Arbitrator in place of Mr. S. K. Wadhwa. She will adjudicate upon the disputes between the parties. She will make and publish her Award within four months from the date she enters upon the reference. The fee of the Arbitrator is fixed at Rs. 10,000/-.

With these observations, the application stands disposed of.

Ordered accordingly.