Welcome Retail Private Limited vs Airports Authority Of India

Ashis Kumar Chakraborty, J

The Court: In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short, "the Act of 1996") the petitioner has prayed for appointment of an Arbitrator to adjudicate disputes arisen between the parties relating to the agreement dated April 30, 2017. There is no dispute between the parties that Clause 22.2 of the said agreement dated April, 20, 2017 contemplates that all disputes and differences arisen shall be adjudicated through arbitration under the provisions of the Act of 1996 by an arbitrator to be nominated by the Chairman of the respondent.

According to the petitioner there are certain disputes and differences arisen between the parties which could not be resolved through amicable settlement and as such by a communication dated June 14, 2017 the petitioner requested the respondent to appoint an Arbitrator to adjudicate the disputes between the parties. The receipt of the said letter dated June 14, 2017 by the respondent is not in dispute. However, since the Chairman of the respondent did not appoint the Arbitrator on April 4, 2019 the petitioner filed the present application.

In the affidavit-in-opposition the respondent has disclosed a communication dated May 24/30, 2019 issued by its Chairman appointing one Mr. Upendra Mullick as a sole Arbitrator to adjudicate the claims of the petitioner and the counterclaims of the respondent if any. On the strength of the decision of the Supreme Court in the case of Datar Switchgears Ltd. -Vs- Tata Finance Ltd. & Anr. reported in (2000) 8 SCC 151, the petitioner submits that the appointment of the Arbitrator by the Chairman of the respondent made after filing of the present application is invalid.

Learned Counsel for the respondent, however, contended that the letter dated June 14, 2017 was not addressed to the Chairman and as such the same is not a valid notice under Section 21 of the Arbitration and Conciliation Act, 1996. He, therefore, prayed for dismissal of the present application.

I have considered the facts of the case as mentioned earlier the existence of the arbitration agreement between parties is not in dispute. The parties also accept that the disputes raised by the petitioner are covered by the arbitration agreement contained in Clause 22.2 of the said agreement. With regard to the invalidity of the notice under Section 21 of the Act of 1996, I find no merit in such contention of the respondent. This is for the reason that the communication dated 24/30, 2019 issued by the Chairman expressly mentions that by the said letter dated June 14, 2017 the petitioner invoked the arbitration clause and as such he appointed the Arbitrator. Thus, it is evident that the Chairman of the respondent accepted the said communication dated June 14, 2017 issued by the petitioner to be a valid notice under Section 21 of the Act of 1996.

For the reasons aforesaid, the application filed by the petitioner succeeds and Mr. Bimal Kumar Chatterjee, Senior Advocate of Bar Library Club is appointed as the sole Arbitrator to adjudicate the disputes between the parties. The Arbitrator shall free to fix his fees and also to arrange the secretarial staff. The fees of the Arbitrator and the remuneration of the secretarial staff shall be borne by the parties in equal share.

With the above direction, the   application, A.P. No. 294 of 2019 stands disposed of accordingly.