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Judgment
H.N. Nagamohan Das, J.—Petitioner and respondent entered into agreements on 13/04/2003 as per Annexures-A and B and another agreement on 30.12.2004 as per Annexure-C for beautification of road medians. When the agreements were in force there came to be differences between the parties with regard to the execution of agreements. Accordingly, the respondent invoked arbitration clause in the agreement and requested the petitioners to agree for appointment of an arbitrator. Petitioner refused to concede to the demand made by the respondent. Having no other alternative respondent approached this court in CMP No. 34/2006 and the same came to be disposed 01.09.2006 appointing the arbitrator. Accordingly, both the parties landed before the arbitrator, filed their pleading, adduced evidence and the award was passed on 10.06.2011. Respondent being aggrieved by the award passed by the arbitrator has filed an application u/s 34 of the Arbitration and Conciliation Act and the same is pending adjudication. When the matter stood at that stage, petitioner issued a demand notice as per Annexure-E dated 15.12.2009 demanding license fee of Rs. 2,90,73,262/-. Respondent disputed the demand made by the petitioner as per Annexure-H dated 27.9.2010. Subsequently, petitioner got issued a notice on 16.03.2012 calling upon the respondents to give their consent for appointment of arbitrator to adjudicate the disputed claim. Respondents issued a reply as per Annexure-M dated 22.03.2012 refusing to give consent for appointment of arbitrator inter-alia contending that the claim of the petitioner is unfounded, barred by limitation and outside the scope of agreement. Under these circumstances, petitioner is before this court.
Heard arguments on both the side and perused the entire writ papers.
It is not in dispute that parties have entered into agreements as per Annexures-A, B and C. These three agreements contain a arbitration clause. As early as on 08.03.2006 respondents invoked arbitration clause under these agreements and consequently this court in CMP Nos. 34, 35 and 36/2006 vide order dated 01.09.2006 appointed an arbitrator to adjudicate the dispute between the parties. Accordingly, the arbitrator has now adjudicated the dispute and passed the award dated 10.06.2011. Now the petitioner is seeking a second arbitrator to go into a fresh claim relating to the payment of license fee. Admittedly, in the award passed by the arbitrator this claim relating the demand of license fee was not adjudicated and the same was not subject matter before him.
Sri Shashikiran Shetty, learned counsel for the respondent contends that once an arbitrator is appointed invoking the arbitration clause under an agreement it is not open for a petitioner to seek second arbitrator. I decline to accept this contention of learned counsel for the respondent. The Supreme Court in Dolphin Drilling Ltd. Vs. Oil and Natural Gas Corporation Ltd., held that "In its present form Clause 28 of the agreement cannot be said to be a one time measure and it cannot be held that once an arbitration clause is invoked the remedy of arbitration is no longer available with regard to the other disputes that may arise in future." Therefore there is no legal impediment for the petitioner to seek appointment of a second arbitrator to go into a dispute which is not considered in the earlier arbitration proceedings and which was not the subject matter then. Secondly, learned counsel for the respondent contends that the claim of the petitioner demanding arrears of license fee is outside the scope of agreements as per Annexures-A, B and C. Therefore, no arbitrator can be appointed for a claim which is outside the scope of agreement. Again I decline to accept this contention. Firstly, the period of agreement at Annexure-A expires on 12.06.2007, Annexure-B on 12.06.2007 and Annexure-C on 27.07.2008. Before the expiry of period fixed in these agreements respondents have invoked the arbitration clause. Even after invoking the arbitration clause, learned counsel for the petitioner contends that the respondent continued to work under the agreements. On the other hand, learned counsel for the respondent disputes the same. Further it is contended that the claim of petitioner is barred by limitation. These issues can be agitated before the arbitrator. In these proceedings, it is not appropriate for this court to go into these controversies. For the reasons stated above, the following:
ORDER
I) Petition is hereby allowed.
II) Learned advocates on both the side submit that Sri V.N. Raveendra, retired District Judge be appointed as Arbitrator. Accordingly, Sri V.N. Raveendra, retired District Judge is hereby appointed as Arbitrator to adjudicate the dispute between the parties in the Arbitration Centre at Bangalore and as per the Rules framed by the Arbitration Centre.
III) Registry to send a copy of this order to the Arbitrator Sri V.N. Raveendra and also to the Arbitration Centre, Bangalore.
IV) Ordered accordingly.