Solar Designs Private Limited v. S.Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2022
CORAM
THE HON'BLE MR. JUSTICE M.SUNDAR Solar Designs Private Limited Represented by its Director Mr.A.A.K.Apath Sakaayem No.1, A Wing 3rd Floor, Parsn Manor No.602, Anna Salai Chennai - 600 006 ... Petitioner Vs.
1. Mr.S.Ramesh
2. R.Subramani Naicker ... Respondents Arbitration Original Petition filed under Section 15(2) of the Arbitration and Conciliation Act, 1996 to substitute the arbitration under Section 15(2) of the Arbitration and Conciliation Act, 1996 in the matter of arbitration between Solar Designs Pvt. Ltd., and S.Ramesh, R.Subramani Naicker arising out of the Memorandum of Understanding dated 11.08.2010.
For Petitioner : Mr.T.M.Mano 1/12
For Respondents : Mr.V.Subramani
O R D E R
This order will now dispose of captioned 'Arbitration Original Petition'['Arb.OP' for the sake of brevity].
2. This order has to be read in conjunction with and in continuation of earlier proceedings made in the previous listing on 20.06.2022, which reads as follows:
'The sole Arbitrator has since been elevated to the Bench of this Hon'ble Court, this has necessitated the presentation of the aforementioned Arbitration Original Petition in this Court inter alia under Section 15(2) of 'The Arbitration and Conciliation Act, 1996 (Act 26 of 1996)' [hereinafter 'A and C Act' for the sake of brevity, convenience and clarity] on 21.04.2022 is Sharath Chandran's (learned counsel for petitioner) say.
2. Issue notice to the respondents returnable by 10 days i.e., returnable by 30.06.2022. Private notice permitted.
3. Learned counsel for the petitioner is permitted to serve on the learned counsel who was representing both the respondents before the sole Arbitrator.
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4. List 10 days hence. List on 30.06.2022.'
3. Short form used in the aforementioned proceedings in the previous listing will continue to be used in the instant order for the sake of convenience and clarity.
4. Mr.T.M.Mano, learned counsel on record for sole petitioner, who is before this Court, adverting to aforementioned earlier proceedings dated 20.06.2022, submits that both respondents have since been served. Mr.Subramani, Advocate, having address for service at No.27, 1st Floor, Walltax Road, Sowcarpet, Chennai - 79 [Mob: 9884432641], who is before this Court submits that he has already filed vakalatnama on behalf of both the respondents yesterday (29.06.2022).
5. Owing to the short point on which captioned matter turns, Arb.OP was taken up for disposal with the consent of learned counsel on both sides.
6. In and by an order dated 02.07.2019 made in O.P.No.813 of 2018, a Hon'ble single Judge of this Court was appointed a sole Arbitrator and a scanned reproduction of the said order is as follows: 3/12
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7. Aforementioned order is telltale qua arbitrable disputes and therefore, it is not necessary to dilate further on those aspects of the matter.
8. Arbitrator appointed in and by aforementioned order dated 02.07.2019 has since been elevated to Bench of this Hon'ble Court owing to which, Hon'ble Arbitrator has sent a communication dated 28.03.2022 to both sides and a scanned reproduction of the same is as follows: 7/12
9. Aforementioned learned counsel on both sides submit that pleadings were completed before the Hon'ble Arbitrator, who has since been elevated to the Bench of this Court and therefore, arbitration should now proceed from the stage of completion of pleadings. Both sides consent for appointment of a former Member of Bench of this Court as sole Arbitrator. 8/12
10. In the light of narrative thus far, Hon'ble Mr.Justice V.Bharathidasan (Retd.), Former Judge of this Court, residing at No.42 (NB) Greenways Road, Chennai - 600 028, Mob: 94443 83139 and 94455 00224, E-mail: dasanvb@gmail.com is appointed as sole Arbitrator.
11. Before writing the concluding part of this order, it is deemed appropriate to mention that captioned Arb.OP has been presented under Section 15(2) of A and C Act (as already alluded to supra) and the language in which sub-section (2) of Section 15 is couched makes it clear that when substitution becomes necessary, the rules that were originally applicable for appointment of arbitrator will kick in for substitution also. To be noted, Section 15(2) reads as follows:
'15. Termination of mandate and substitution of arbitrator :- (1).....
(a) ......
(b) ......
(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.'
12. One more aspect that needs to be recorded is, both learned 9/12
counsel submit that the arbitrable disputes are not hit by restrictions regarding arbitrability qua Vidya Drolia principle i.e., ratio laid down by Hon'ble Suprme Court in Vidya Drolia & Ors. Vs. Durga Trading Corporation reported in 2019 SCC OnLine SC 358, as it is a lease arrangement. This submission is recorded.
13. Hon'ble Mr. Justice V.Bharathidasan (Retd.), is requested to enter upon reference qua MOU dated 11.08.2010, arbitrate qua arbitrable disputes that have arisen between the petitioner and respondent by holding sittings at 'Madras High Court Arbitration Centre under the aegis of this Court' (MHCAC) and render an award as per Madras High Court Arbitration Proceedings Rules 2017 and fee of the Hon'ble Arbitrator shall be as per Madras High Court Arbitration Centre (MHCAC) (Administrative Cost and Arbitrator's Fees) Rules 2017.
Captioned Arb.OP disposed of in the aforesaid manner. There shall be no order as to costs.
30.06.2022 Index: Yes/no Speaking/Non-speaking Order 10/12
Note: Registry to communicate this order forthwith to:
1. Hon'ble Justice V.Bharathidasan (Retd.,) High Court, Madras No.42 (NB) Greenways Road Chennai - 600 028 Mob: 94443 83139 and 94455 00224 E-mail: dasanvb@gmail.com
2. The Director Tamil Nadu Mediation and Conciliation Centre -cum- Ex Officio Member, Madras High Court Arbitration Centre Madras High Court, Chennai - 600 104.
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M.SUNDAR.J., gpa 30.06.2022 12/12