Mohanraj Co. Operative Housing Society Ltd. v. Akar Creations Private Limited

R.D. Dhanuka, J.:— By this application filed under section 11(6) of the Arbitration and Conciliation Act, 1996 the applicant seeks appointment of a sole arbitrator by invoking clause 46 of the development agreement dated 18 August, 2011 between the applicant and the respondent.

2. According to the applicant, the dispose arose between the parties and thus the applicant invoked the arbitration agreement vide notice dated 15 January, 2018. The said notice was responded by the respondent by letter dated 31 January, 2018. Since the respondent did not agree to the name suggested by the applicant in the notice dated 15 January, 2018, the applicant filed this application under section 11(6) of the Arbitration and Conciliation Act, 1996.

3. The application is opposed by the learned counsel for the respondent on the ground that the arbitration clause contemplates existence of dispute however in this case allegedly there was no such dispute, the question of appointment of arbitrator does not arise. The respondent however does not dispute the arbitration agreement.

4. A perusal of the notice dated 15 January, 2018 issued by the applicant through its advocate to the respondent thereby invoking arbitration agreement clearly indicates that the development agreement dated 18 August, 2011 between the parties has been terminated by the applicant society. The nature of the dispute is already setout in the said notice in the arbitration agreement. The said notice has been replied by the respondent by their advocate's letter dated 31 January, 2018 denying the allegations made by the applicant.

5. In my view, there is thus no substance in the submission made by the learned counsel for the respondent that there is no dispute existing between the parties.

6. Since the respondent did not agree to the name suggested by the applicant for the appointment of the arbitrator, this application filed under section 11(6) of the Arbitration and Conciliation Act, 1996 is maintainable. Since there is no dispute about the existence of the arbitration agreement, the applicant is entitled to apply for appointment of the arbitrator.

7. Mr. Vishwajeet P. Sawant, a counsel of this court is appointed as a sole arbitrator. His address is as under:—

Mr. Vishwajeet P. Sawant, C/o. Room No. 36, Advocates’ Association of Western India, High Court, Bombay.

8. The learned prospective arbitrator is requested to file statement of disclosure under section 11(8) read with 12(1) of the Arbitration and Conciliation Act, 1996 before this court on or before the next date.

9. The applicant is directed to obtain such disclosure from the learned prospective arbitrator and to tender the same before this court on the next date.

10. Place the matter on board for directions on 11th October, 2018.