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TMI Blog2013 (9) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the possibility of resolving the disputes between the parties amicably - Therefore, section 8(1) of the Arbitration and Conciliation Act, 1996 was not attracted to the dispute between the appellant and JLL. Moreover, it was the appellant which approached the CLB with an application seeking refund of the first instalment of the fee of Rs.16 paid to JLL and also seeking directions from the CLB appointing another valuer, other than JLL - After approaching the CLB with the application and having lost it, it now contended that the CLB had no jurisdiction to pass the impugned order - Its stand was contradictory. The appellant had sent a communication to JLL requesting for appointment of an arbitrator and that this amounted to commencement of arbitral proceedings under section 21 of the Arbitration and Conciliation Act and therefore from this date the CLB lost jurisdiction to adjudicate upon the matter - I have already discussed how section 8(1) of the aforesaid Act was not attracted to the dispute between appellant and JLL. Therefore, the CLB was well within its jurisdiction to have decided. The provisions of section 8(1) of the Arbitration and Conciliation Act, 1996 were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the price of the shares of the Indian company may be determined. The CLB accordingly passed an order on 10.9.2009 appointing M/s Ernst and Young for the purpose of determining the share price on the date of filing the company petition. Since the process of determining the fair price of the shares involved the process of valuing the land, the CLB on the same date appointed M/s Jones Lang Lasalle Property Consultants (India) Pvt. Ltd., the first respondent herein, for determining the value of the land as on January, 2008. The question of fees payable to M/s Jones Lang Lasalle Property Consultants (India) Pvt. Ltd. (hereinafter referred to as JLL ) was left to be negotiated between the parties. JLL quoted their professional fees for valuing the land at Rs.32 lakhs. The Belgium Company filed an application before the CLB stating that the fees payable to JLL were very high. In the course of the hearing of the application, the appellant herein, apparently in an attempt to cut short the litigation, agreed to bear the entire fees payable to JLL. 4. Thereupon a Consulting Services Agreement (CSA) was entered into between the appellant and the first respondent on 12.4.2010 at New Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that it was only appointed for a limited purpose to carry out the valuation of the land consisting of 18.6 acres in Kashipur, Dist. Udham Singh Nagar, Uttarakhand. Referring to the affidavit filed by the appellant in the application seeking reference of the dispute to arbitration in terms of clause 17 of the CSA, JLL contended that neither the contents of the valuation report nor the payment of provisional fee could be made the subject matter of arbitration within the scope of clause 17 of the CSA. It was submitted that the applicant (appellant herein) was refusing to pay the balance of the fees and also asking for refund of the fees paid on the ground that JLL had submitted an inappropriate valuation report, which cannot be a subject matter of arbitration within the scope of clause 17 of the CSA. It was further pointed out that none of the conditions of section 8 of the Arbitration and Conciliation Act, 1996 was satisfied and it was not open to the applicant to present a plea under section 8 that the question of payment of fees should be referred to arbitration. 8. In the reply, JLL also pointed out that it had sent a letter dated 20.5.2010 to the Company Law Board stating tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, it kept on communicating with JLL and giving information, which it claims to be relevant information, regarding the valuation of the land. It must be remembered that JLL is the appointee of CLB and is a professional valuer. It is not bound to respond or communicate with the appellant in respect of each and every information or input given by the latter, even though it may be relevant for the purpose of valuation of the land. As a professional valuer it was not the duty of JLL to keep the appellant informed as to how every input supplied by the latter was considered and factored while arriving at the value of the land. It would have been unprofessional if JLL were to do so. It went about the task in a professional manner and when it found necessary to seek an extension of time, it did so by writing to the CLB seeking extension of time for submission of the final report. Even on 20.5.2010 the appellant was intimated by JLL that the report was ready for submission and it was awaiting the payment of the balance of the fees. This was done by JLL by marking a copy of its letter dated 20.5.2010 addressed to the CLB to the counsel for the appellant. On 14.12.2010 JLL wrote an e-mail t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies Act alleging oppression and mismanagement. The appellant had also filed a petition under section 397 and 398 of the Companies Act in CP 58(ND)/2008 complaining against acts of oppression and mismanagement by the Belgium company. Thus there were cross-petitions before the CLB containing mutual allegations of oppression and mismanagement. It was in one of those petitions that the CLB, in an attempt to ascertain the fair price of the shares of the Indian company, appointed JLL as the valuer for valuing the land as part of the process of valuing the shares. Thus the mater which is the subject of an arbitration agreement between the appellant and JLL was not the action which was brought before the CLB. The order passed by the CLB on 10.9.2009 was an order seeking an expert opinion regarding the fair price of the shares of the Indian Company which was to be determined keeping in view of the possibility of resolving the disputes between the parties amicably. Therefore, section 8(1) of the Arbitration and Conciliation Act, 1996 is not attracted to the dispute between the appellant and JLL. Moreover, it is the appellant which approached the CLB with an application in CA 260/2012 seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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