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TMI Blog2002 (10) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... een the parties contained an arbitration clause in the following terms : "10. Arbitration. In the event of any doubt, dispute, difference or question arising howsoever between the parties from or under this agreement or any operation activity or accounting thereunder (including any question of interpretation or enforceability of this agreement), the same shall, if not amicably resolved, be referred to the arbitration of a mutually agreed arbitrator and in the event of any disagreement as to the appointment of such sole arbitrator, the sole arbitrator shall be a professional practising in Bombay appointed by the Bombay Chamber of Commerce and Industry, Bombay. The arbitration proceeding shall take place at Bombay. The award of the sole a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erce nominated Mr. Justice D.R. Dhanuka, a former Judge of this court, to adjudicate upon the dispute between the parties. Parties led evidence before the arbitrator. The award of the sole arbitrator has been rendered on 16 May, 2002, by which the petitioner has been ordered and directed to pay an amount of Rs. 11,59,081.16 to the respondent together with interest @ 18% per annum from the date of the reference. The arbitral award records that at the fourth arbitral meeting held on 4 April, 2000, the arbitral Tribunal was specifically informed by and on behalf of the petitioner herein that in respect of the claim of the respondent of Rs. 14,83,963.13 - the petitioner conceded that the respondent was entitled to a credit of Rs. 11,78,894.87. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole arbitrator shall be appointed by the aforesaid institution. 5. There is no merit in the first submission. In the present case, after disputes between the parties arose and the agency was terminated on 3 April, 1998, the respondent had on 18 January, 1999, made a clear suggestion to the petitioner that if there was no agreement between the parties along the lines of the proposal which was made by the respondent, it would be appropriate to have the matter resolved by arbitration, through the Bombay Chamber of Commerce. On 12 May, 1999, the respondent invoked the latter part of clause 10 by requesting the Bombay Chamber of Commerce to appoint an arbitrator. The response of the petitioner was significant, because it was not the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns relying upon the correspondence between the parties. Besides, the arbitrator has recorded that the petitioner had fairly stated before him that the petitioner had no objection to the selection of the particular arbitrator in the present case, namely, Mr. Justice D.R. Dhanuka as sole arbitrator by the Bombay Chamber of Commerce and Industry. The first submission must, therefore, fail. 6. The next limb of the first submission that was urged was that the arbitration clause provided for the appointment of an arbitrator by the Bombay Chamber of Commerce and there was no provision under which the arbitration would be under the auspices of that institution. Again, there is no merit in that contention. The arbitrator has noted that insofar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner. According to the petitioner, the commission had been erroneously paid and should have been refunded to the petitioner in view of the arbitrator s finding that the respondent was not entitled to commission on direct sales. The arbitrator has dealt with this aspect in paragraph 4.5 of the award and has recorded that the evidence in the matter of Shri Amrut Mistry showed that, on various occasions, the petitioner herein used to pay commission to the respondent even in respect of direct sales and sale of goods not covered under the agency agreement. The arbitrator has held that the payment of such commission was not under a mistake as claimed by the petitioner and it was paid, taking a conscious decision, in view of the excellent business ..... X X X X Extracts X X X X X X X X Extracts X X X X
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