Sustainable Agro-Commercial Finance Limited v. Bhausaheb Janardan Aher
psv
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION (L.) NO.213 OF 2019 Sustainable Agro-commercial Finance Limited ..Applicant Vs.
Bhausaheb Janardan Aher ..Respondent ----- Mr.Yashpal Thakur with Mr.Amit Somvanshi for Applicant. ----- CORAM :
G.S. KULKARNI, J.
DATE :
20th JUNE, 2019 P.C.:
1.
Heard learned Counsel for the applicant.
2.
An affidavit of service of Mr.Vaibhav Bhaskar Deshmukh dated 13 June 2019 is placed on record on behalf of the applicant. It records that personal service is effected on the respondent. Despite service, the respondent has failed to appear in this case. Accordingly, the application is taken up for hearing.
3.
This is an application under Section 11 of the Arbitration and Conciliation Act, 1996 (for short, "the ACA") whereby the applicant has prayed for appointment of an arbitral tribunal for adjudication of the disputes which are stated to have arisen between the parties under the
loan cum hypothecation agreements dated 20 November 2013, 26 March 2014 and 9 October 2014. Clause 28 of the said agreement is the arbitration agreement between the parties which reads thus:- "28.
Dispute Resolution: In the event of any dispute or controversy that may arise from or relating to the remittance, operations or from the interpretation or implementation of this Agreement, the parties hereto undertake to first endeavour to resolve such dispute or controversy amicably through conciliation, within thirty (30) days from the date when such dispute or controversy arises. Unresolved disputes arising out of or relating to this agreement or the arrangement agreed to herein shall be referred to arbitration of a Sole Arbitrator jointly appointed by both the parties. The place of arbitration proceedings shall be at Mumbai and proceedings to be conducted in English. The proceedings shall be conducted in accordance with the Indian Arbitration and Conciliation Act, 1996 as amended from time to time. The Award of the Arbitrator shall be final and binding on both the parties. Parties to bare the respective cost and cost of the arbitration proceedings shall be shared."
4.
The case of the applicant is that a term loan facility in the sum of Rs.11,63,600/- was disbursed to the respondent as set out in more detail in the body of the application. The respondent defaulted in making payment of the installments of the said financial facility as made available by the applicant. The applicant by its notice dated 22 December 2017 recalled the loan and raised demand of Rs.20,72,753/- against the respondent being the amount due and payable by the respondent to the applicant under the loan agreement in question. Even after issuance of notice, the respondent could not make the payment. The applicant accordingly issued a notice dated 24 January 2019
invoking the arbitration agreement and called upon the respondent to appoint a sole arbitrator to adjudicate the disputes between the parties. This notice was received by the respondent on or about 29 January 2019, however the respondent did not confirm and/or concur in the appointment of the Sole Arbitrator. Accordingly, the present application has been filed by the applicant praying for appointment of an arbitral tribunal.
5.
Having heard learned Counsel for the applicant and having perused the record, it is quite clear that the respondent is the beneficiary of the loan facility made available by the applicant. Under clause 28 of the said agreement, the parties have agreed for disputes being referred to an arbitral tribunal under the said agreement. It is also on record that the applicant by the notice dated 24 January 2019 invoked the arbitration agreement and sought reference of the disputes. All the averments which are made in the petition are required to be treated as admitted as they are not controverted by the respondents. 6.
In the above circumstances, the application is required to be allowed. Hence, the following order:-
ORDER
(i) Mr.Sriniwas S.Bobde, Advocate of this Court, is appointed as a sole Arbitrator to arbitrate the disputes and differences between the
parties under the loan cum hypothecation agreements dated 20 November 2013, 26 March 2014 and 9 October 2014; (ii) The learned sole prospective arbitrator, fifteen days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application with a copy to be forwarded to both the parties; (iii) At the first instance, the parties shall appear before the prospective arbitrator within 10 days from today on a date which may be mutually fixed by the prospective sole arbitrator; (iv) All contentions of the parties on merits of the matter are expressly kept open;
(v) The fees payable to the arbitral tribunal shall be in accordance with the Bombay High Court (Fee Payable to the Arbitrators) Rules, 2018;
(vi) The application is disposed of in the above terms. No costs. (vii) Office to forward a copy of this order to the learned Arbitrator on the following address:
"Chamber of Mr.Sharan Jagtiani, Ground Floor, Ovaz House, Off.Nagindas Master Road, Fort, Mumbai.
Contact No. 9619846066.
E-mail: shriniwassbobde@gmail.com"
[G.S. KULKARNI, J.] corrected as per speaking to the minutes of the order dated 26 June 2019.