- (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 :- "10) My clients hereby refer the said disputes to the arbitration of Mr. Partha Sarathi Bose Sr. Advocate of Bar Library Club, High Court, Calcutta as sole arbitration to adjudicate and determine the said disputes and differences as arisen between the parties."
(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. Only the respondent nos. 2 to 6 are represented today and such respondents deny that there is any arbitration agreement to which such respondents and the petitioners herein are parties. It appears that the notice invoking the purported arbitration agreement is bad since such notice did not specify the agreement that was sought to be invoked. Section 11 of the 1996 Act requires the Chief Justice or his designate to step in upon there not being any agreed procedure for the constitution of an arbitral tribunal and despite the effort of a party to put the tribunal in place, the other parties thwart it; or, upon the agreed procedure failing to secure the constitution of the tribunal. In either case, the Chief Justice or his designate has to be satisfied that the arbitration agreement was sufficiently indicated by the person seeking to invoke the same to afford the other parties thereto an opportunity to act in accordance with the agreed mechanism for the constitution of the tribunal envisaged thereunder or to acquiesce in the suggestion as to the constitution of the tribunal by the person invoking the arbitration agreement. If the arbitration agreement itself is not identified, the addressees are not put on adequate notice for them to respond appropriately to the invocation of the arbitration agreement.
(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. In the present case, the precondition to making the request to the Chief Justice or his designate does not appear to have been complied with. AP No. 107 of 2012 cannot be entertained and is dismissed as not maintainable. Nothing in this order will preclude the petitioner from invoking the proper arbitration agreement in accordance with law and making a future request in such regard.;