(Prayer: This Petition Is Filed Under Section 11(6) Of The Arbitration And Conciliation Act, 1996 Praying To Appoint An Arbitrator In Terms Of The Arbitration Agreement Contained In The Agreement Dated 23rd June 2012 To Resolve The Dispute Between The Petitioner And The Respondent, By Appointing Mr.Yeshwanth Kumar, Civil Judge (Retired), Bengaluru As Sole Arbitrator.)
Though notice has been served, the respondent remain unrepresented.
By way of this application under Section 11(6) of the Arbitration and Conciliation Act, 1996 ('the Act of 1996'), the petitioner - Company has made the request for appointment of Arbitrator to adjudicate upon and decide all its disputes with the respondent, arising out of and relating to the agreement dated 23.06.2012, concerning "providing for Instructional and Computing Technologies (ICT) solutions involving comprehensive education infrastructure implementation, teacher training and content development together with hardware components required for their effective dissemination for their school on BOOT (Build Operate Own and Transfer) model".
The petitioner has averred that in terms of the agreement aforesaid, it had provided services to the respondent and made a request to the respondent to clear off the dues for the services rendered, but the respondent failed to make the requisite payment of the dues under the agreement. The petitioner has also alleged that for the respondent's failure to comply with the terms of the agreement, a notice dated 16.10.2014 was issued, demanding the outstanding amount but, the said notice returned unserved. Therefore, the petitioner was constrained to invoke the arbitration clause by its notice dated 04.12.2014 suggesting the name of Arbitrator. However, the said notice returned as 'refused'.
It is submitted that in the given circumstances, where the parties have not agreed for appointment of the Sole Arbitrator mutually, it is just and proper to appoint a Sole Arbitrator in terms of the agreement.
Heard learned counsel for the petitioner and perused the record.
The limited aspect required to be considered in this application is as to whether there exists an arbitration agreement between the parties?
In fact, the existence of arbitration agreement in this matter is apparent on the face of the record. The arbitration clause, being Clause 15.10 in the Service Agreement, reads as under:
"All disputes and differences whatsoever which may at any time hereafter (whether during the continuance of these presents or upon or after its discharge or determination) arise between the parties hereto in respect of, concerning, touching or arising out of these presents, shall be amicably settled in the first instance failing which it shall be referred to arbitration. The arbitration shall be conducted by a sole arbitrator to be mutually agreed upon by the parties and in accordance with and subject to the provisions of the Arbitration and Conciliation Act, 1996 with any statutory modifications or re-enactments thereof for the time being in force. The venue of the Arbitration shall be Bangalore only. The expenses of the Arbitration proceedings shall be shared by each party in equal proportion or as per the decision of the Arbitrator."
From the material placed on record, it is evident that the parties entered into the agreement and the petitioner sent the notices aforesaid demanding payment and invoking arbitration clause.
In the totality of circumstances, where the petitioner is asserting its right of money recovery against the respondent and the parties have apparently not been able to resolve the dispute and appear to be standing at conflict; and for the reason of failure of the procedure for appointment of arbitrator, it is just and proper that an independent arbitrator be appointed to adjudicate upon and decide the dispute between the parties, including their claims, counter claims and objections.
Having regard to the circumstances of the case and the nature of dispute, it appears just and proper that Shri N.N. Dharwadkar, Retired District Judge, be appointed to act as an Arbitrator to resolve the dispute between the parties under the provisions of the Act of 1996, as per the Rules governing the Arbitration Centre at Bengaluru.
Accordingly, this petition is disposed of by appointing Shri N.N. Dharwadkar, Retired District Judge, to enter into the said reference and to act as an Arbitrator in the present case in the Arbitration Centre, Bengaluru, as per the Rules governing the said Arbitration Centre.
In the interest of justice, it is made clear that the Arbitrator shall adjudicate upon and decide all the disputes between the parties including their claims, counter claims and objections relating to the agreement in question. The requirements of the Arbitration and Conciliation A
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ct, 1996, [as amended by the Arbitration and Conciliation (Amendment) Act, 2015], shall be complied with by all the concerned. Needless to observe that all the questions arising between the parties in this matter shall remain open for determination in the arbitration proceedings. A copy of this order be sent to the Arbitration Centre, Khanija Bhavan, Bengaluru, for proceeding further in the matter on administrative side and also to Shri N.N.Dharwadkar, on the address available with the said Arbitration Centre, Bengaluru.