- (1.) LEAVE granted.
(2.) THIS appeal is directed against the order dated 9/12/2005 passed by the Hon'ble Chief Justice of the High court of Judicature at Allahabad in Arbitration Application no. 54 of 2003 appointing Hon'ble Mr. Justice Giridhar malviya, a retired Judge of the Allahabad High Court as arbitrator in respect of the dispute between the parties. Respondent Nos. 4 and 5 before the High Court are the appellants in this appeal. According to them, late Hari prakash Agrawal (father of respondent No. 7) and Rameshwar das Agrawal (appellant No. 1 herein) were very close relatives and they decided to carry on business of electronics and electrical goods and other items. They executed a partnership deed on 15/5/1992 which contains an arbitration clause. Subsequently, a dispute arose between the members of their two families and by agreement dated 13/9/2002 signed by the partners, Shri Gopal Goel of Ravindrapuri, Varanasi was appointed as sole Arbitrator to decide all the disputes concerning the business. Since the entire disputes between the families were reconciled, fresh Deed of Partnership reconstituting the three partnership firms were executed on 13. 09. 2002 and signed by all the partners and witnessed by the sole Arbitrator - Shri Gopal Goel and one Shri Vinod kumar Jindal, one of the advisors to the Arbitrator. This was intimated to the bank and sales-tax authorities. After retirement of Smt. Kiran Agrawal and her husband Shiv kumar Agrawal on 13/9/2002, a fresh Retirement Deed was executed on 5/7/2003 which was also duly signed by the parties concerned. Thereafter, first respondent herein filed an application dated 7/7/2003 under Section 11 of the arbitration and Conciliation Act, 1996 (in short the 'act') for appointment of an Arbitrator based on clause 21 of the agreement dated 15/5/1992. On 17/10/2003, the High Court issued notice to all the 8 respondents-therein. Thereafter, the matter was listed on 9/12/2005 and as per the office report, most of the respondents had not been served. Shri rameshwar Das Agrawal, appellant No. 1-herein was represented in the High Court through his counsel and prayed time to file counter affidavit. It was also stated that no dispute remained for adjudication. The High Court, after rejecting the request of the first appellant-herein, by order dated 9/12/2005, appointed Hon'ble Mr. Justice Giridhar malviya as an Arbitrator. Aggrieved by the said order, the appellants preferred this appeal. We heard Mr. Manoj Swarup, learned counsel for the appellants and Mr. Jay Savla and Mr. Gaurav Agrawal, learned counsel for respondent Nos. 1 and 7 respectively. Respondent Nos. 2 to 6 though duly served notice not chosen to contest the appeal.
(3.) MR. Manoj Swarup, learned counsel for the appellants placing reliance on a Seven-Judge Bench decision of this court in SBP and Co. vs. Patel Engineering Ltd. and another, (2005) 8 SCC 618, which was pronounced on 26. 10. 2005, submitted that the decision on the application under Section 11 of the Act is a judicial pronouncement, the impugned order of the Hon'ble Chief Justice which does not contain any reason cannot be sustained and the same deserves to be set aside. He also contended that the Hon'ble chief Justice, who passed the impugned order, has not taken care to verify whether notice had been duly served on all the respondents. He further contended that in any event, the high Court ought to have granted reasonable time to file their objections. On the other hand, Mr. Jay Savla and Mr. Gaurav Agrawal, learned counsel for the contesting respondents submitted that inasmuch as the appellants herein (respondents before the High Court) did not utilize the ample time provided by the High Court for filing their objection, the ultimate order of the Hon'ble Chief Justice cannot be faulted with. He also submitted that there is no violation of the law as declared by this Court. We have carefully perused the relevant materials and considered the rival submissions.;