- (1.) HEARD learned counsel for the parties on the application u/s 11 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') for appointment of Arbitral Tribunal for adjudication of the disputes and differences between the parties in respect of Agreement dated 2.4.2005 (Anx.3) for construction of multi storey building. The aforesaid Agreement dated 2.4.2005 contained Arbitration Clause 18.
(2.) SUBMISSION of counsel for the Applicant is that to resolve the dispute, the Applicant gave notice dated 30.1.2008 for reference of the dispute and to constitute Arbitral Tribunal but the Non-applicants have failed to act as per Clause 18. In para 22 of the notice, the Applicant has mentioned that as per Clause 18, Shri Ashok Kumar Dubey and Shri J.P.Sharma, Advocates have to be appointed as the Arbitrators for resolving the dispute and further that Shri Ashok Kumar Dubey was the Advocate for the Non-applicants No.1 and 2 in proceeding u/s 9 of the Arbitration and Conciliation Act, 1996, therefore, he was disqualified to be appointed as Arbitrator. However, the Applicant shown its willingness for appointment of Shri J.P.Sharma, Advocate as the Arbitrator and further asked the Non-applicants to appoint any other Arbitrator as per Clause 18. In support of the aforesaid, counsel placed reliance on para 22 of National Insurance Company Limited V. Boghara Polyfab Private Limited (2009) 1 SCC 267. Counsel for the Non-applicants No.1 and 2 has not disputed the execution of the agreement dated 2.4.2005 containing the Arbitration Clause 18. However, counsel for the Non-applicant No.3 has disputed the existence of Clause 18 on the ground that when the draft of the agreement was shown to the Non-applicant No.3, the said Clause 18 was not there and by playing fraud, it has been inserted later on but he has also not disputed the territorial jurisdiction of this Court. I have considered the aforesaid submission of counsel for the parties. Before proceeding further, it is relevant to quote para 22 of the National Insurance Company Limited V. Boghara Polyfab Private Limited (2009) 1 SCC 267. The same is as under: Para 22 of National Insurance Company Limited V. Boghara Polyfab Private Limited (2009) 1 SCC 267 "22.Where the intervention of the court is sought for appointment of an Arbitral Tribunal under Section 11, the duty of the Chief Justice or his designate is defined in SBP & Co. (2005) 8 SCC 618. This Court identified and segregated the preliminary issues that may arise for consideration in an application under Section 11 of the Act into three categories, that is, (i) issues which the Chief Justice or his designate is bound to decide; (ii) issues which he can also decide, that is, issues which he may choose to decide; and (iii) issues which should be left to the Arbitral Tribunal to decide. "22.1. The issues (first category) which the Chief Justice/his designate will have to decide are: (a) Whether the party making the application has approached the appropriate High Court. (b) Whether there is an arbitration agreement and whether the party who has applied under Section 11 of the Act, is a party to such an agreement. 22.2 The issues (second category) which the Chief Justice/his designate may choose to decide (or leave them to the decision of the Arbitral Tribunal) are: (a) Whether the claim is a dead (long-barred) claim or a live claim. (b) Whether the parties have concluded the contract/transaction by recording satisfaction of their mutual rights and obligation or by receiving the final payment without objection. 22.3 The issues (third category) which the Chief Justice/his designate should leave exclusively to the Arbitral Tribunal are: (i) Whether a claim made falls within the arbitration clause (as for example, a matter which is reserved for final decision of a departmental authority and excepted or excluded from arbitration). (ii) Merits or any claim involved in the arbitration." In my view, the plea taken by the Non-applicant No.3 only of playing fraud appears to be an after thought as the non-applicants No.1 and 2 have not raised this objection. Therefore, I hold that the Non-applicant No.3 is a party to the agreement dated 2.4.2005.
(3.) WITH the consent of counsel for both the parties, instead of Arbitral Tribunal, I appoint Mr.Justice J.R.Goyal, retired Judge of this Court as the Sole Arbitrator, and the matter is referred to him for resolving the disputes between the parties, arising out of the Agreement dated 2.4.2005. The Sole Arbitrator will fix his fee according to the Arbitration Manual. All objections would be open to be raised by the Non-applicants before the Sole Arbitrator. The application is allowed. A copy of this order be sent to Mr.Justice J.R.Goyal, T-1-10, Paliwal Park, Near Sanghi Farm, Tonk Road, Jaipur.;