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TMI Blog2023 (9) TMI 1572X X X X Extracts X X X X X X X X Extracts X X X X ..... when there is an arbitration clause, the aspects are to be decided by the arbitrator for such purpose. In the proceedings under section 8 of the Arbitration Act, it is not the function of the Court to examine in detail, the extant and nature of dispute, if dispute exist is referable to the arbitration clause occurring in the agreement between the parties, the appointment of arbitrator has to follow - It is observed that this Court has not expressed any opinion on merits of the dispute and arbitrability thereof. The Registry is directed to list the same before the appropriate Bench in accordance with roster for the purpose of passing the order regarding appointment of arbitrator. - Honourable Mr. Justice N.V. Anjaria For the Petitioner(s) No. 1 : Mr C.P. Chaniyara (6836) For the Petitioner(s) No. 1 : Mr. Ratilal V. Sakaria (6613) For the Respondent(s) No. 1 Shardul Amarchand Mangaldas And Co. (8426) CAV ORDER The present is an application filed under section 11 of the Arbitration and Conciliation Act, 1996, whereby the petitioner-partnership firm seeks to appoint an arbitrator. 1.1 In course of hearing, learned advocate for the parties argued in detail and at length, that the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st letter was addressed again by email on 06.11.2019. 3.4 It was the case of the petitioner that total damage to the various assets covered under the insurance policy was Rs. 1,76,19,967/- as stated above, out of which, since the insurance company only paid Rs.84,19,579/- by net banking transfer, unpaid balance of Rs.92,00,388/- was required to be paid to the petitioner with interest. As the payment was not made, the petitioner sent a legal notice dated 02.03.2020, wherein the petitioner expressed intention to resolve the dispute by arbitration by suggesting the name of the arbitrator. 3.5 Putting forth the above case as well as the contention that the copy of survey report was still not supplied to the petitioner and that the respondent had not acted as per the applicable Insurance Regulatory Development Authority (IRDA)the petitioner claimed interest also. It was submitted that there existed a quantum dispute between the petitioner and respondent, required to be resolved under clause no.13 of the terms and conditions of the fire policy. 3.6 At this stage, clause 13 of the Special Peril Policy dealing with the the resolution of the disputes, may be looked at, 13. If any dispute or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner on 24.12.2018. It was further contended that thereafter, a consent letter dated 24.12.2018 was addressed by the petitioner to the surveyor. According to the respondent, by virtue of the said consent letter, the petitioner agreed to the net loss assessed by the surveyor. 4.2 The consent letter, which was relied on behalf of the respondent, reads as under, CONSENT LETTER To, Mr. Paresh S. Shah- Insurance Surveyor Loss Assessor Paresh Shah Associates, Satellite Ahmedabad. Sub: Policy No. 0000000009006820, Claim No. 513768. Insurer: SBI General Insurance Co. Ltd. Dear Sir, We have taken the above policy insurance from SBI General Insurance Co. Ltd., during the effective period, the stock of waste cotton bales were affected / damaged due to fire and for the survey purpose you have been appointed surveyor from the insurance company. After detailed discussion in view of facts and volumetric calculation, we are accepting the quantity of 317085.3 kgs. against our claim of 441111.58 kgs. The net loss assessed by you as here under is acceptable and binding to us subject to terms condition and warranty of the insurance policy and final approval of insurer. We are accepting the net loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- was accepted without protest. 4.8 By pressing into service the decision of the Supreme Court in United India Insurance Company Limited vs. Antique Art Exports Private Limited [2019) 5 SCC 362], it was submitted that the power to appoint arbitrator is a judicial power and not merely administrative function, therefore, in absence of arbitral dispute, the powers cannot be exercised and request for appointment of arbitrator may not be acceded to. On the basis of the said case, it was submitted on behalf of the respondent that when there was a full and final settlement between the parties and that there was a voluntary acceptance without any demur or protest, which indicate that the claim was finally settled between the parties. 5. It has to be mentioned that in the communication dated 25.10.2019 addressed by the petitioner to the respondent insurance company, it was requested to the company to provide a copy of the complete survey report with all enclosures. As per the say of the petitioner, it wanted to understand the calculations made by the surveyor, which arrived at the said figure. 5.1 It was further stated in the communication thus, Now, since our auditors and bankers would li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the arbitrator. When the claim is disputed, it is the arbitrator who may competently decide the claim. Arbitrability of the dispute is also to be decided by the arbitrator. While exercising the powers under section 8 of the Arbitration and Conciliation Act, 1996, such questions cannot be gone into by this Court and when there is an arbitration clause, the aspects are to be decided by the arbitrator for such purpose. 6.2 Following observations of the Supreme Court in Oriental Insurance Company Ltd. vs. Dicitex Furnishing Ltd. [(2020) 4 SCC 621], may be pertinently noticed, ...an application under Section 11(6) is in the form of a pleading which merely seeks an order of the court, for appointment of an arbitrator. It cannot be conclusive of the pleas or contentions that the claimant or the concerned party can take, in the arbitral proceedings. At this stage, therefore, the court which is required to ensure that an arbitrable dispute exists, has to be prima facie convinced about the genuineness or credibility of the plea of coercion; it cannot be too particular about the nature of the plea, which necessarily has to be made and established in the substantive (read: arbitration) pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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