Tata Capital Financial Services Ltd. v. Quality Wire Products And 2 ORS.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL ARBITRATION APPLICATION NO.53 OF 2022 Tata Capital Financial Services Limited ...

Applicant Vs.

Quality Wire Products and others ...

Respondents Mr. Akshay Sawant a/w. Ms. Kunjita Shah i/b. I V Merchant & Co. for Applicant. None for Respondents.

CORAM : MANISH PITALE, J.

DATE : SEPTEMBER 13, 2023 P.C. :

By this petition, the petitioner is seeking substitution of the arbitrator in the light of the fact that the arbitrator recused himself and withdrew from the arbitration proceedings.

2.

The respondents were served and they are represented through advocates. On the last date of hearing i.e. 31.08.2023, learned counsel appearing for the respondents took time for seeking instructions in the matter and he also indicated that an endeavor would be made to settle the disputes. This Court made it clear on the said date that, if the settlement is not worked out, the present petition would be considered on merits.

3.

Today when the application is called out for hearing, there is no appearance on behalf of the respondents and the learned counsel appearing for the applicant is pressing for relief in terms of the prayer made in the present application.

Digitally signed by MAMTA AMAR KALE Date:

2023.09.15 11:01:17 +0530 MAMTA AMAR KALE 4.

The arbitration clause in the present case provides for appointment of the arbitrator unilaterally by the applicant. The applicant had issued a notice to the respondents in the light of disputes arising 1/3

between them and it claimed certain amount from the respondents while invoking the arbitration clause. Thereafter, the applicant appointed the arbitrator and the proceedings were initiated. But, by e-mail dated 21.12.2021, the sole arbitrator informed the parties that he would not be able to continue as an arbitrator for resolving disputes between the parties. In this backdrop, on 24.01.2022, the present application was filed wherein the applicant has invoked Section 15 of the Arbitration and Conciliation Act, 1996 for substitution of the sole arbitrator. 5.

This Court has heard the learned counsel for the applicant in the backdrop of the material placed on record. There can be no dispute about the fact that the arbitration clause, in the present case, would be hit by Section 12(5) of the Act as it provides for unilateral appointment of arbitrator. The learned counsel for the applicant submits that this Court may appoint a neutral arbitrator in the backdrop of the fact that the sole arbitrator has recused himself and withdrawn from the arbitration proceedings.

6.

Considering the factual position in the present case, the situation contemplated under Section 15(1)(a) of the Act has arisen as the mandate of the arbitrator has been terminated due to the fact that he has withdrawn from the arbitration. In that light, this Court is convinced that sufficient ground is made for exercising power under Section 15(2) of the said Act for substituting the arbitrator. 7.

Considering the extent of claim raised by the applicant, which can be related to the claims stated in the invocation notice, it would be appropriate that an advocate practising in this Court is substituted as the sole arbitrator.

8.

Accordingly, Colonel D. K. Bishnol, Advocate is appointed as the substituted arbitrator for resolution of disputes between the parties. The 2/3

details of the substituted arbitrator are as follows:- Colonel D. K. Bishnol, Advocate Chamber No.10, Oriental Business Centre, Rajabahadur Mansion, Near Bombay Stock Exchange (BSE), Ambalal Doshi Marg, Fort, Mumbai - 400 001.

Mobile : 9370166350 / 70045199859 / 9417878344 Email : kmrdinesh73@gmail.com 9.

The applicant shall inform the said learned arbitrator at the earliest about the order passed today.

10.

Learned Arbitrator is requested to communicate his consent and disclosure statement in terms of Section 11(8) and 12(1) of the aforesaid Act to the Prothonotary and Senior Master of this Court, within three weeks from today.

11.

The fees of the learned Arbitrator shall be fixed in terms of the Fourth Schedule to the aforesaid Act.

12.

All questions are kept open for decision by the learned arbitrator. 13.

The application stands allowed in above terms. (MANISH PITALE, J.) Minal Parab 3/3