Ashis Kumar Chakraborty, J. - (1.) In this application, under Section 11(6) of the Arbitration and Conciliation Act, 1996, as amended by the Act 3 of 2016 (in short, "the Act of 1996"), the petitioner has prayed for appointment of an arbitrator in place and stead of one of the joint arbitrators of the arbitral tribunal named by the parties. The petitioner has also prayed that if necessary, appointment this Court would appoint a third arbitrator to constitute the arbitral tribunal and adjudicate upon the disputes between the parties herein in terms of the arbitral agreement dated March 20, 2012 as mentioned hereinafter.
(2.) The respondent no. 1 is the father of the petitioner and the respondent nos. 2 and 3 are the brothers of the petitioner. As the members of the same family, the petitioner and the respondents have some common business and properties. On March 20, 2012 the parties herein entered into an arbitration agreement for adjudication of the disputes which may arise, between themselves at any time in the future towards, relating to the division of their family assets and properties including their businesses through arbitration by Sri Ishwar Chand Gupta and Sri Manoj Kumar Bhura. Thereafter, on July 16, 2012 the parties held a meeting among themselves, in presence of the said joint arbitrators and entered into an agreement for amicable and mutually agreeable partition of the various properties owned by the family, sale of their residential house at 23/1, Mandeville Gardens and division of the companies belonging to the members of their family. The minutes of the said meeting held on July 16, 2012 (which is also described as the memorandum of understanding) is signed by all the parties and the joint arbitrators has been disclosed as Annexure- "B" to the petition. Clause 16 of the said minutes of the meeting dated July 16, 2012 provides as follows: "16. The Parties hereby agree and undertake that the rights and obligations of the Parties as provided in this memorandum of understanding is not merely an agreement to agree, but is valid and binding on the Parties and may be enforced , through specific performance or otherwise."
(3.) According to the petitioner, he himself has discharged all the obligations stipulated in the minutes of the said meeting dated July 16, 2012 but the respondent nos.2 and 3 in spite of having obtained the benefit thereof, have refused to discharge their obligation. Therefore, disputes have arisen between the parties, which are required to be adjudicated upon by the joint arbitrators named in the said agreement dated March 20, 2012. By a letter dated February 22, 2017 the petitioner requested the said joint arbitrators to enter upon reference and to adjudicate the disputes between the parties herein relating/to the minutes of the said meeting held on July 16, 2012. However, by a letter dated March 22, 2017 one of the joint arbitrators namely, Manoj Kumar Bhura expressed his inability to arbitrate and proceed with the matter any further. Thus, by a communication dated March 9, 2017 addressed to the respondents, the petitioner proposed the name of an advocate of this Court to be appointed as an arbitrator in place of Manoj kumar Bhura. However, by a letter dated March 20, 2017 the respondent no. 3 alleged that the arbitrators named in the said agreement dated March 20, 2012 had never acted as arbitrators but they acted as joint facilitators/negotiators and helped the parties in reaching a settlement which has been recorded in the minutes of the meeting held on July 16, 2012. The respondent no.3 further claimed that the relationship between the parties is now governed by the said minutes of the meeting held on July 16, 2012, there is no arbitration clause in the settlement minutes and, as such, the question of appointing any arbitrator does not arise. According to the petitioner, the disputes between the parties herein is covered by the said arbitration agreement dated March 20, 2012 but as one of the named joint arbitrators Sri Manoj Kumar Bhura has expressed his inability to act as an arbitrator and the parties have failed to agree to name the arbitrator in place and stead of the said Sri Bhura, this Court would appoint a fit and independent person as the second arbitrator of the arbitral tribunal for adjudication upon the disputes between the parties. The petitioner has also prayed, if necessary, this Court may appoint a third arbitrator to constitute the arbitral tribunal.;