Arindam Sinha,J. - (1.) The Court : This arbitration petition is for appointment of arbitrator. Mr. Karmakar, learned advocate appears on behalf of petitioner and submits, his client is partner in partnership constituted by Deed dated 1st April, 1995. The Deed carries arbitration agreement by clause 24 therein, which is reproduced below: "That in the event of any dispute, or difference of opinion in the matter of interpretation, execution of carrying out the objects and functions of the enterprise arbitrators shall be appointed and the arbitrators appointed shall amongst themselves appoint an Umpire. The decision of the arbitrators would be binding on the parties to the disputes. In the event of any difference amongst them the decision of the Umpire would be final and binding upon all concerned according to the provisions of the Arbitration Act, 1940."
(2.) By letter dated 14th December, 2017, caused to be written on behalf of his client, notice of disputes arisen in respect of partnership business was given along with nominee arbitrator of his client. On failure of respondent to nominate her arbitrator, this petition made for appointment of respondent's nominee arbitrator, by Court. He submits, there is agreed procedure for appointment of arbitrators but same has failed. Court should appoint sole arbitrator considering cost impact being heavier in case arbitral tribunal consists of three arbitrators.
(3.) He submits, resistance of respondent to submit to arbitration is based on fact of civil suit filed by her, for declaration of title to properties. Though his client has filed application under section 8 of Arbitration and Conciliation Act, 1996, in the civil court but said application is pending. According to him, adjudication of this petition culminating in appointment of arbitrator cannot be resisted on ground of pendency of either the suit or the section 8 application or what can be their result on adjudication. He relies on judgment of Supreme Court in Booz Allen and Hamilton Inc. vs. SBI Home Finance Ltd. and Ors., reported in (2011) 5 SCC 532 , to paragraphs 32 to 38 with special emphasis on paragraph 36, which is reproduced below: "36. The well-recognised examples of non-arbitrable disputes are: (i) disputes relating to rights and liabilities which give rise to or arise out of criminal offences; (ii) matrimonial disputes relating to divorce, judicial separation restitution of conjugal rights, child custody; (iii) guardianship matters; (iv) insolvency and winding-up matters; (v) testamentary matters (grant of probate, letters of administration and succession certificate); and (vi) eviction or tenancy matters governed by special statutes where the tenant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes.";