IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08th DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE CIVIL MISCELLANEOUS PETITION NO.213 OF 2017 BETWEEN:
NITYANAND INFRASTRUCTURE LTD D NO 5-11-A (6) PUNAROOR COMPLEX, MULKI, MANGALORE - 574154 REPRESENTED BY ITS DIRECTOR MR. JAYANTH S.PRABHU. ... PETITIONER (BY SRI N KHETTY FOR SMT. AKKAMAHADEVI HIREMATH, ADV) AND ONGC MANGALORE PETROCHEMICALS LTD A SUBSIDIARY OF MANGALORE REFINERY & PETROCHEMICALS LTD MSEZ PERMUDE MANGALURU - 574509 REPRESENTED BY ITS MANAGING DIRECTOR. ... RESPONDENT (By Sri. P.D.VISHWANATH, ADVOCATE) THIS CIVIL MISCELLANEOUS PETITION IS FILED UNDER SECTION 11(5) OF THE ARBITRATION AND CONCILIATION ACT 1996, PRAYING TO (A) APPOINT THE SECOND ARBITRATOR TO THE ARBITRAL TRIBUNAL TO ENABLE THEM TO APPOINT THE UMPIRE, THEREBY COMPLETING THE CONSTITUTION OF THE ARBITRAL TRIBUNAL AND COMMENCE THE ARBITRATION PROCEEDINGS FOR THE ADJUDICATION OF THE DISPUTES BETWEEN THE PETITIONER AND THE RESPONDENT ARISING OUT OF THE CONTRACT BEARING LOA NO. OMPL/5752 DATED:13/05/2013 AND ETC.
THIS CIVIL MISCELLANEOUS PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr. N.Khetty for Smt.Akkamahadevi, learned Counsel for the petitioner.
Mr.P.D.Vishwanath, learned counsel for the respondent.
The petition is admitted for hearing. With the consent of learned Counsel for the parties, the matter is heard finally.
2. By means of this petition under Section 11(5) of the Arbitration and Conciliation Act, 1996, the petitioner seeks appointment of an Arbitrator.
3. I have heard learned counsel for the parties at length. Admittedly, the parties have entered into an agreement on 13.05.2013. Clause 9.2.0.0 of the General Conditions of Contract contains an arbitration clause. The dispute between the parties has arisen in relation to the aforesaid agreement. The petitioner admittedly has sent a notice on 28.04.2017 invoking the arbitration clause. Thereafter this petition has been filed. Learned counsel for the parties did not dispute execution of the agreement and the arbitration clause. However, learned counsel for the respondent submitted that there is no arbitrable dispute between the parties.
4. The Supreme Court in “DURO FELGUERA, S.A. VS. GANGAVARAM PORT LIMITED” (AIR 2017 SC 5070) has held that in view of Section 11(6-A) of the Arbitration and Conciliation Act, 1996 the Court is required to examine whether or not an arbitration agreement exists. In view of the aforesaid pronouncement of law by the Supreme Court and taking into account the fact that the dispute has arisen between the parties in relation to the agreement dated 13.05.2013 which contains an arbitration clause, I deem it appropriate to appoint Dr.S.B.N.Prakash, Retired District and Sessions Judge as sole Arbitrator to adjudicate the dispute between the parties. Needless to state that the respondent shall be at liberty to raise an objection before the Arbitrator that there is no arbitrable dispute between the parties.
5. A copy of this order be dispatched to the Arbitration Centre, Khanija Bhavan, Bengaluru for necessary action in that regard. Learned counsel for the petitioner to also approach the Arbitration Centre with the relevant papers to be filed therein. The learned Arbitrator appointed herein shall thereupon enter reference and proceed with the matter in accordance with law and the Rules governing the Arbitration Centre.
Accordingly, petition is disposed of.
akc/-
Sd/- JUDGE