A.I.S. Cheema, J. - (1.) THE present revision application has been filed by the petitioner, challenging order of Sole Arbitrator, rejecting application of the petitioner, objecting to the maintainability of the Arbitration proceedings.
(2.) IN brief, the matter brought by the petitioner is that, the petitioner is proprietor of Firm M/s Rajan and Company, operating at Nagercoil, District Kanyakumari, Tamil Nadu. It deals in Electronics goods. Respondent is Public Limited Company and deals in selling of multi -brand electronics goods. Officials of the respondent at Madurai Branch approached the firm of petitioner and petitioner had placed purchase orders with the said officials at Madurai Branch on credit. There was no agreement entered into between the petitioner and respondent. Later on, respondent claimed inflated amount of Rs.20,13,213/ - from petitioner although only Rs.10,79,354/ - was due. Respondent sent notice on the basis of forged documents and referred the matter to the Sole Arbitrator Shri Girish V. Wani. The appointment was unilateral and without consent of petitioner and in absence of any valid agreement. Respondent is trying to project an alleged document namely "Customer Master Attribute" (CMA for short). The petitioner denied that any such agreement was entered into or that such CMA could be termed as agreement. Respondent filed claim petition before the Sole Arbitrator on 21.3.2012. Case is that respondent had sent notice dated 3.11.2011, demanding Rs.20,13,213/ - and petitioner sent reply dated 12.12.2011, claiming that only Rs.10,79,354/ - was due. Respondent sent rejoinder dated 3.1.2012 and petitioner sent further reply dated 19.1.2012. The petitioner initially filed petition under Section 7, 9(ii)(d) and (e) and 13 of the Arbitration and Conciliation Act, 1996 (Arbitration Act for short) before the District Judge, Nagercoil and the same was rejected on 19.3.2012. Order of the District Court was challenged before the Madurai Bench of the High Court of Madras in C.R.P. (P.D.) (M.D.) No.1250/2012 and M.P. (M.D.) No.1/2012 and even that petition was disposed of on 7.12.2012, holding that it was open to the petitioner to raise the plea before the Arbitrator. Petitioner appeared before the Sole Arbitrator and filed application dated 4.5.2013 raising objection at preliminary stage to the jurisdiction and maintainability of the arbitration proceedings as per Section 16 of the Arbitration Act. The respondent opposed the application and the application was rejected on 21.8.2013 and hence, the present revision application. I have heard counsel for both sides. Learned counsel for the petitioner argued that the CMA relied on by the respondent is denied by the petitioner as according to petitioner it was not executed by him. There was no contractual relationship established and the CMA is not an arbitration agreement. The Sole Arbitrator, while rejecting the application of petitioner, did not decide if the arbitration agreement is there. Reliance has been placed on the case of Bharat Rasiklal Ashra Vs. Gautam Rasiklal Ashra and anr., reported in : AIR 2011 Supreme Court 3562, claiming that when in the notice petitioner denied existence of arbitration agreement, without deciding whether there is arbitration agreement, appointment of the Arbitrator was not permissible. Reliance is placed also on the case of Zenith Fire Services (India) Pvt. Ltd., Mumbai Vs. Charmi Sales, Ahmedabad, reported in : 2013(2) Mh.L.J. 623, to submit that if the respondent appointed Arbitrator unilaterally, burden is on the respondent to show that the appointment is valid and binding. According to the learned counsel, if there was valid agreement, right of appointment unilaterally could be made, but in the present matter, petitioner denied executing CMA and thus, the unilateral appointment was not legal. It is further argued by the learned counsel for petitioner that the Sole Arbitrator appointed is one of the Arbitrators on the panel of the respondent Company and earlier also he has acted as Arbitrator for the Company and so, there is likelihood of bias and that under Section 12 of the Arbitration Act, the Arbitrator should have recused himself. The argument of the learned counsel for petitioner was that, the Arbitrator, in support of his order, also relied on an invoice, which refers to arbitration clause, but the arbitration clause mentions that the arbitration shall be at Mumbai. He submitted that, in rejoinder notice dated 3.1.2012, however, the respondent had relied on CMA for the purpose of appointing Arbitrator at Aurangabad. It is argued that, the rulings relied on by the Arbitrator for ruling his competency on jurisdiction was erroneous. Thus, the petitioner wants the order passed by the Arbitrator to be quashed and set aside.
(3.) PER contra, the learned counsel for respondent raised objection that the present revision itself is not maintainable as the Arbitrator is not "Court" as contemplated under Section 115 of the Civil Procedure Code, 1908 (Civil Procedure Code for short). According to the learned counsel, present matter does not arise from any judgment or order of "Court" as defined under Section 2(e) of the Arbitration Act. It has been submitted that, under Section 19, the Arbitral Tribunal is not even bound by the CPC or the Indian Evidence Act and thus, according to him, the present revision is not maintainable. It was further submitted that, the dealers with whom the respondent does business, are required to execute the CMA. In the present matter also, CMA was executed by the petitioner and on the basis of same, goods were supplied and received. Only subsequently, the petitioner has denied executing CMA. It was argued that, the Arbitrator has held that the question whether or not CMA has been duly executed, can be decided by permitting parties to lead the evidence with reference to execution of the document. It was argued that, under Section 7 of the Arbitration Act, existence of the agreement can be construed even from letters, exchange of letters and no specific format is prescribed. Reliance is placed on the matter of Impex Corporation and ors. Vs. Elenjikal Aquamarine Exports Ltd., reported in : AIR 2008 Kerala 119 in support of the submission that no particular format is prescribed. According to the learned counsel, the invoice referred by the Arbitrator is also on record, and in addition to such invoice, there are various other such invoices, on the basis of which goods were supplied and accepted, the petitioner never objected to the same. It was submitted that, these invoices clearly had contents that the transactions are subject to arbitration. He submitted that, no doubt what is printed on the invoices mention that the place of arbitration shall be at Mumbai. He submitted that, the respondent, however, relying on the CMA executed between the parties, has appointed the Sole Arbitrator at Aurangabad, but if the petitioner wants, the Arbitrator can hold sittings even at Mumbai. It was argued that, on the basis of various invoices, goods were supplied and petitioner made payments, but now the petitioner wants to deny all the documents bearing his seal signatures just so as to claim that there was no agreement executed regarding arbitration. It is argued that, the facts of the rulings relied on by the petitioner are different. In the present matter, there was mutual agreement. There is no basis for the alleged apprehension of bias. The petitioner has not even filed written statement/ reply in the arbitration proceedings and the proceedings are yet to start. Without Arbitrator having done anything, bias is alleged. According to the learned counsel for respondent, it being a Company, the respondent, has a panel of Arbitrator, but that by itself does not mean that Arbitrators are likely to be biased.;