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Judgment
This is an application for appointment of an Arbitrator.
The petitioner initially filed a writ petition challenging the order of termination. The said writ petition was allowed. However, on an appeal preferred by the respondent No.2, the order of the learned Single Judge was set aside and the parties were directed to take steps in accordance with law. The objection seems to have been raised in both the earlier proceedings is the existence of an arbitration clause in the General Terms and Conditions of Contract. The Appellate Court felt that the proper remedy should be by way of arbitration and not by way of a writ petition. Consequent upon the dismissal of the writ petition, request was made for appointment of an Arbitrator.
The respondent authorities upon receiving the request did not raise any objection that the petitioner has not followed the proper procedure, instead, the authority requested the petitioner to apply in a prescribed format, which according to the rules would come, provided the authority concerned did not accept the grievance of the petitioner and redress the same. Inspite of filing of proforma in form-25, the respondent authorities did not make any appointment. The matter was again taken up with the respondent authorities. This time the respondent authorities have come out with an excuse that since the cost of Rs.10 lakhs as assessed by the Division Bench while allowing the appeal, has not been deposited, the request for appointment of Arbitrator could not be acceded to.
The petitioner thereafter has deposited the said amount. Still then, the respondent authorities have failed to appoint an Arbitrator. The existence of arbitration clause is not in dispute.
In view of the amended provisions of 1996 Act, namely, section 11(6A), the Court is only required to confine its attention to the existence of an arbitration agreement. It is also clear that the respondent authorities did not appoint any Arbitrator. In fact, any appointment of the Arbitrator in terms of the clause under the present law may not be permissible in view of Schedule V of the Amended Act.
The learned counsel for the parties has agreed for appointment of a panel of three arbitrators.
Under such circumstances, by consent of the parties, a panel of Three Arbitrators is constituted to adjudicate the disputes between the parties which shall consist of nominee of each of the parties. The petitioner has suggested the name of Mr. Arjun Basu, Advocate as its nominee. Similarly the respondent has suggested the name of Mrs. Anjili Nag, Advocate as its nominee. The parties have agreed that they shall not challenge the composition of the Arbitral Tribunal.
Accordingly, Mr. Arjun Basu, Advocate and Mrs. Anjili Nag, Advocate are appointed as arbitrators. Mr. Justice Jyotirmay Bhattacharya, the former Chief Justice of High Court at Calcutta shall be the Third Arbitrator. The commensurate remuneration shall be fixed by the Arbitrators at the first sitting of the arbitration. The petitioner and the respondents shall bear the remuneration of their respective nominees. However, the remuneration of the Third Arbitrator shall be borne by the parties in equal measures.
The learned Arbitrators are requested to complete the proceeding within fifteen months from the date of filing of statement of claim.
AP No.002 of 2019 is accordingly, disposed of.