(Prayer: Applicant filed under Order XIV Rule 8 of O.S. Rules read with Sec. 151 of CPC to permit the petitioner to pursue against the respondents jointly under the services Agreement/Teaming Agreement dated 01.04.2015, the Services Agreement/Delivery Partner Agreement dated 05.06.2015 and the Engagement Letter dated 05.06.2015 by combining the cause of action against the respondents in this petition.)
1. This application has been filed by the applicant to pursue against the respondents jointly under Services Agreement/Teaming Agreement dated 01.04.2015 between the petitioner and the first respondent, the services agreement/delivery partner agreement dated 05.06.2015 between the petitioner and the second and third respondents and the engagement letter dated 05.06.2015 by combining the cause of action against the respondents and the Original Petition has been filed for appointment of a common arbitrator to decide the dispute arising out of the above agreements entered between the applicant and the respondents.
2. The main contention of the applicant is that the applicant is a sub contractor under Delivery Contract Agreement. Though there were clauses in the contract that without bypassing the contract, the parties are not supposed to deal with any other contract, the first and second respondents colluding with their wife have incorporated Limited Liability Partnership firm. In such view of the matter, all the disputes of the principal agreement and dispute arising out of the three agreements, a common arbitrator has to be appointed to enter reference.
3. Further, the learned counsel for the applicant also brought to the notice of this Court, when the applicant has invoked arbitration by way of letter dated 17.09.2019, nominating an advocate as an arbitrator, the respondents in their reply except objecting the name of the person to be appointed, had in fact suggested a retired Judge of this Court to be appointed as a sole arbitrator to resolve the issue. Having agreed in their reply notice, now the respondent has taken a different stand as if a common arbitrator cannot be appointed.
4. Whereas, the learned counsel for the respondents submitted that there is no commonality of facts and in the application filed under Section 9 of the Arbitration and Conciliation Act. Though the Single Bench has granted an interim Order, the same was stayed by the Division Bench of this Court. Hence, prayed for dismissal of this application.
5. I have perused the materials referred above. In all the three agreements there exist a clause for arbitration. As per the agreement dated 01.04.2015, the venue of the arbitration shall be either at Chennai or Mumbai. In the other two agreements, the venue shall be at Chennai. These facts are not in dispute. Admittedly, clause to refer the dispute to the arbitrator is governing parties. Though there are three agreements, it is the main contention of the applicant that LLP has been formed with collusion of the first respondent to defeat the rights of the applicant, there is commonality of the facts involved which inextricably interwined and the same shall be resolved by the common arbitrator.
6. As rightly pointed out by the learned counsel for the petitioner, the letter of invocation has been sent as early as on 17.09.2019 and the respondents have not objected for appointment of a common arbitrator and in fact they had agreed for appointment of Honourable Justice Mr.N.Paul Vasanthkumar as a sole arbitrator. However, the same was not accepted by the applicant. When the respondent themselves have agreed for a common arbitrator in respect of the three agreements, now it cannot be stated that all the disputes between the parties cannot be decided by a sole arbitrator. When a commonality of facts is involved and LLP also formed in the name of the wife of the Managing Director, the first respondent and wife of the third respondent, this Court is of the view that a common arbitrator can be appointed and the arbitrator shall decide the disputes arising out of the three agreements separately. The parties are at liberty to putforth their claims and counter claims, based on the above agreements.
7. The contention of the learned counsel for the respondent is that the Division Bench has stayed the interim Order passed by the Single Bench and hence, all the disputes cannot clubbed together. Therefore, he has stated that as there is a stay Order in respect of the interim Order granted under the application filed under section 9 of the Arbitration and Conciliation Act, a common arbitrator cannot be appointed. In the Orders of the Division Bench, what is stayed is the interim Order passed under Section 9 of Arbitration and Conciliation Act and not appointment of a common arbitrator. Hence, mere staying of the interim Order by the Division Bench will not be a bar for appointment of a common arbitrator, since the respondents themselves have accepted for appointment of a common arbitrator in their reply notice.
8. Accordingly, it is ordered as follows:
I] that Mr.S.Rajeswaran, Judge [Retd.], High Court, Madras, residing at No.AA-67, II Street, Near Rountana Nalli Silk House, Anna Nagar, Chennai -40, Mobile No9444390952 is appointed as a Sole Arbitrator to enter upon refere
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nce and adjudicate the matter. ii] That the learned Arbitrator appointed herein, shall after issuing notice to the parties and upon hearing them, pass an award as expeditiously as possible, preferably within a period of six months from the date of receipt of the Order. iii] That the learned Sole Arbitrator appointed herein shall fix the fees and the same shall be borne by the parties equally. 9. This Original Petition is ordered accordingly, leaving the parties to bear their own costs. As the arbitrator has been appointed, O.P.No.SR140594 of 2019 is closed.