GAUTAM AGARWALLA Vs. CHAKRADHAR LAL AGARWALLA

JUDGEMENT

(1.) THE Court : The request under Section 11 of the Arbitration and Conciliation Act, 1996 is misconceived and not maintainable. The invocation of the arbitration agreement is said to be by way of a letter dated August 5, 2011. A copy of such letter appears at pages 122 to 128 of the petition. The letter is addressed to 17 persons, most of them bearing the surname Agarwalla except for one who is the son of an Agarwalla but has dropped the surname. The petitioners claim to be the legal heirs of one Radheshyam Agarwalla and say in the letter that disputes and differences had arisen "out of a partnership firm viz., Nandram Hunatram." Over the eight initial paragraphs in the letter, the background and the functioning of the firm have been referred to. Paragraph 9 speaks of certain disputes and differences having arisen. Paragraph 10 of the letter reads as follows :-

(2.) ONE set of parties replied by a letter of September 19, 2011 denying that the petitioners had any right in respect of the firm. Such parties are not represented today. One of the noticees, the respondent no 3 herein, replied that he did not accept the appointment of the arbitrator. Another noticee said that he was not a party to any arbitration agreement with the petitioners.

(3.) IT cannot be lost sight of that the authority exercised under Section 11 of the 1996 Act by the Chief Justice or his designate is the default mechanism. In other words, it is not the mechanism of first choice for the constitution of an arbitral tribunal. It is only if the agreed procedure fails or, if there is no agreed procedure, the parties fail to agree upon a procedure for securing the constitution of the arbitral tribunal, that a request may be carried to the Chief Justice or his designate.