Court No. - 1
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 86 of 2018 Applicant :- M/S Khan Builders Opposite Party :- General Manager, Northern Railway And Another Counsel for Applicant :- Pranab Kumar Ganguly Counsel for Opposite Party :- Rajnish Kumar Rai
Hon'ble Saumitra Dayal Singh,J.
1. Rejoinder affidavit filed today. Taken on record.
2. Heard Sri P.K. Ganguly, learned counsel for the applicant and Sri Rajnish Kumar Rai, learned counsel for the opposite parties.
3. The present application has been filed seeking appointment of an arbitrator. At the outset, a preliminary objection has been raised that the present application is pre-mature inasmuch as the statutory notice dated 09.04.2018 claimed to have been served does not raise a demand for appointment of an arbitrator in terms of clause 64(1) (i) of the written agreement between the parties.
4. While the execution of the agreement containing an arbitration clause and the termination of the contract dated 23.11.2016 are not disputed by the opposite parties, it does appear that under clause 64(1)(i) of the written agreement, a demand for appointment of arbitrator ought to have been made by the applicant and only in the event of that demand being not satisfied, an application under Section 11 could have been filed.
5. It is settled principle in these matters that before the Court may appoint an independent arbitrator, the parties may have complied with the procedure agreed between them with respect to the appointment of an arbitrator.
6. Inasmuch as the letter dated 09.04.2018 only put the opposite parties to notice and in the event of demand not being made, the applicant would seek appointment of arbitrator by the Court but the notice never raised any demand for appointment of arbitrator by the opposite parties, the present application is found to be pre-mature. It is accordingly dismissed, leaving it open to the applicant to initiate proper proceedings in accordance with law.
Order Date :- 26.7.2019 Abhilash