Decided on December 16,2013

M/S. Walchandnagar Industries Ltd. Appellant
M/S. Jud Cements Ltd. Respondents


PRAFULLA C.PANT, J. - (1.) BY means of this application moved under Section 11 (6) of the Arbitration and Conciliation Act, 1996, the applicant has sought appointment of arbitrator.
(2.) HEARD . Brief facts of the case are that the applicant entered into an agreement with the respondent on 9 -8 -2007 whereby the applicant was required to supply the respondent a Clinkerisation plant for a contract price of Rs. 95 crores excluding taxes/duties. The machinery was required to be imported from Japan. It is pleaded that the respondent out of Rs. 9.5 crores required to be paid as advance, paid only Rs. 1 crore to the applicant. It is alleged that in November, 2008, the respondent informed the applicant that due to financial constraints, the term of the agreement could not be complied with and sought time till April, 2009 for making payment of outstanding dues. It is further alleged that the respondent handed over 2(two) cheques dated 30 -7 -2009 and 30 -10 -2009 each of Rs. 6 crores but the same on presentation before bankers got dishonoured. It is further stated that on 23 -1 -2012, the applicant appointed Hon 'ble Mr. Justice V.P.Tipnis (former Judge, Bombay High Court) as arbitrator and called upon the respondent to appoint second arbitrator by serving notice. When no response was received, Arbitration Application No. 146 of 2012 was filed before the Bombay High Court under Section 11 of the Arbitration and Conciliation Act, 1996. The respondent opposed the said application before the Bombay High Court and raised objection as to territorial jurisdiction of said Court. The Bombay High Court vide its order dated 15 -3 -2013 dismissed the application on the ground of lack of territorial jurisdiction. Hence, this application before this Court.
(3.) THE respondent has opposed the application before this Court on the ground that after dismissal of the application by the Bombay High Court, this Court cannot entertain the arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996. It is also contended on behalf of the respondent that the applicant should have filed an appeal before the Supreme Court against the order of the Bombay High Court. It is also argued that since the Bombay High Court did not grant liberty to the applicant to file this petition, as such, the same cannot be entertained by this Court.;

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