Prem Shanker Asopa, J. - (1.) Heard counsel for the parties. This is an arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996 arising out of the agreement dated 25th April, 2011 (Annexure-1) containing arbitration Clause 25 for settlement of the disputes between the parties arising out of the said agreement.
(2.) Briefly, stated the facts of the case are that:- 2(a): On 25th April, 2011 Agreement (Annexure-1) was executed between the parties for handling and transporting of goods and seeds (labour work) for the plant of the non- applicant at Kota for the period w.e.f. 25th April, 2011 to 31st March, 2012. As per the terms and conditions of the agreement, the applicant deposited INR 1 Lac as earnest money and INR 2,50,000/- as security deposit. 2(b): At the end of the contract period when there was no work even was left with the non-applicant, a letter was written by the Regional Manager to the higher officer for blacklisting the applicant firm. 2(c): On 16th March, 2012 a show cause notice (Annexure-2) was issued by the non-applicants to the applicant which was replied to by it on 23rd March, 2012 through its counsel and denied the allegations levelled in the notice dated 16th March, 2012. However, the Managing Director, with the approval of the Chairman unilaterally by order dated 24th April, 2012 (Annexure-4) ordered for blacklisting the applicant firm for five years and also ordered forfeiture of the earnest money as well as the security amount deposited by the applicant firm. 2(d): On account of passing of the aforesaid order of blacklisting and forfeiture of the earnest and security amount, a dispute has arisen between the parties and in view of Agreement dated 25th April, 2011 (Annexure-1) containing arbitration Clause No.25, the applicant through its Counsel Shri L.L. Gupta served the legal notice (Annexure-5) on 17th October, 2012 asking the non- applicants to make the payment of INR 3,50,000/- or in the event of non-payment to refer the dispute to an, independent Arbitrator for which the applicant suggested the name of Mr. Justice MAA Khan, former Judge of this Court. Appointment of the independent Arbitrator has been sought for the reason that since the decision of forfeiture of the earnest and security amount and blacklisting of the applicant firm was passed by the Managing Director himself with the approval of Chairman. The said notice was received by the non-applicants but when no reply in response to the said notice was received by the applicant even after more than 30 days, then the applicant has filed the present arbitration application on 3r January, 2013 for appointment of an Independent Arbitrator for adjudication of disputes and differences which have arisen between the parties. However, no independent Arbitrator has been appointed sofar.
(3.) Counsel for the non-applicants, in the reply to the arbitration application has raised preliminary objections that since the representation of the applicant is pending, the arbitration application is not maintainable and further raised the objection that the Managing Director of the non-applicant Corporation is the sole named Arbitrator under Clause 25 of the Agreement but by notice dated 17th October, 2012 (Annexure-5) the applicant itself has challenged the authority of the Managing Director as an Arbitrator which is not open to the applicant after agreeing and getting the fruits of the agreement. Except the aforesaid two preliminary objections, others are the facts regarding compliance and non-compliance of terms of the agreement which are not germane to decide the present arbitration application.;