9911796707
TMI Blog2004 (12) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... tious issues to be urged and agitated before the Arbitral Tribunal itself. Even under the old law, common sense approach alone was commended for being adopted in construing an arbitration clause more to perpetuate the intention of parties to get their disputes resolved through the alternate disputes redressal method of arbitration. 3. Brief facts of the case are that the petitioner is a sole proprietorship firm and is involved in constructions business. A contract was awarded by the Executive Engineer, Public Works Department, Div. I, Bharatpur in favour of the petitioner vide letter dated 30.3.1998 and the agreement was accordingly executed. As per the terms of the agreement stipulated date of commencement was 14.4.1998 and the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner alongwith the notice dated 22.8.2002 (Ex.4), which has been placed on record. Clause 23 of the said agreement is reproduced hereinbelow:- 23. If any question, difference or objection whatsoever shall, arise in any way in connection with or arising out of this instrument or the meaning of operation of any part thereof or the rights, duties or liabilities of either party, then save in so far as the decision of any such matter as herein before provided for and been so decided, every such matter constituting a total claim of ₹ 50,000/- or above, whether its decision has been otherwise provided for and whether it has been finally decided accordingly, or whether the contract should be terminated or has been rightly terminated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e processed the notice dated 22.8.2002 for further action in their office and made its entry in the dispatch receipt register on 28.8.2062. Reference may have to Annex.R/1. The period of 30 days as stipulated under Clause 23 of the agreement was computed by the respondents w.e.f. 28.8.2002. However, the fact remained undisputed that registered notice was received on 26.8.2002. 6. The learned Single Judge rejected the arbitration application No. 79/2002 filed by the petitioner vide its order dated 15.1.2004 which has been challenged by the petitioner by this writ petition under Articles 226 and 227 of the Constitution of India. 7. Shri R.C. Joshi, counsel for the petitioner contended that once the notice dated 22.8.2002 alongwith which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forfeited and in support of his contention counsel Shri J.K. Agarwal placed reliance on a decision of Hon'ble Supreme Court in Datar Switchgears Ltd. v. Tata Finance Ltd. 2000 (8) SCC 151. 9. In the aforesaid came under Clause 20.9 of the lease agreement no notice period was provided in the above arbitration clause and it gives unbridled discretion to the lessor in appointing Arbitrator. After the notice was served for making payment and before filing of the application under Section 11 of the Act of 1996, Arbitrator was appointed under Clause 20.9 of the lease agreement. As such the question which came before the Hon'ble Supreme Court for consideration was as to whether the case falling under Section 11 of the Act of 1996, can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact with regard to receipt of notice alongwith cheque oft 26.8.2002 (Ex.11) was probably not brought to the notice of the learned Single Judge. 13. In our opinion once the party failed to act in accordance with the agreed procedure of appointing Arbitrator as provided under Clause 23 of the agreement, the Chief Justice or the Judge designated by him is required to appoint Arbitrator after taking into consideration the provisions of Section 11 of the Act. 14. In the foregoing circumstances the order passed by the learned Single Judge is not sustainable and the same is hereby set-aside. The application filed by the appellant under Section 11 of the Act is allowed and Hon'ble Mr. Justice N.M. Kasliwal (Retd.) is appointed as sole Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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