- (1.) The applicant has invoked jurisdiction of this court under Section 11 of Arbitration and Conciliation Act, 1996 (in short "Act of 1996"). A prayer is made to appoint independent Arbitrator to adjudicate the dispute between the parties.
(2.) Learned counsel submits that the non-applicant terminated dealership of the applicant vide their order dated 01.02.2011. It was based on illegal and faulty procedure for inspection and taking sample apart from procedure of search and seizure. The non-applicant even violated the procedure for sampling and testing of product. The applicant preferred an appeal against the order of termination of dealership. The said appeal was dismissed vide order dated 27.06.2011. Prior to dismissal of the appeal, the applicant filed an application under Section 9 of the Act of 1996 to seek direction not to disturb or interfere in the operation of sale of petroleum product. The said application was dismissed by the subordinate court vide its order dated 18.11.2010. The applicant thereupon preferred a misc. appeal before this court but it was dismissed with liberty to prefer an appeal against the order dated 01.02.2011 whereby dealership was terminated. It was in view of the fact that during pendency of the misc. appeal, order of termination of dealership was issued by the non-applicant. The applicant was left with no option but to prefer appeal before the Executive Director against the order of termination of dealership but that was also dismissed. The applicant thereupon preferred a writ petition bearing No.8718/2011 to challenge the order of termination and the appellate order. The court passed interim order directing the parties to maintain status quo in regard to retail outlet in question vide the order dated 11.07.2011.
(3.) The applicant then preferred this application for appointment of Arbitrator. It is in view of failure of the nonapplicant to appoint Arbitrator as per Clause 66 of the agreement despite a dispute, thus this court should appoint independent and impartial Arbitrator by taking into consideration Section 11(8) of the Act of 1996. It is in view of the fact that the Managing Director or the officer nominated by him as Arbitrator would be the sole Arbitrator in a matter where appeal preferred by the applicant was dismissed by the Executive Director. The Managing Director is higher officer in the hierarchy but would be persuaded by the order passed in appeal by the Executive Director. If Managing Director nominates an officer below the rank of Executive Director then the applicant cannot expect justice through arbitration. Section 11(8) of the Act of 1996 provides for appointment of independent and impartial Arbitrator. In the background aforesaid, the applicant preferred this application. It is moreso when non-applicant even failed to nominate Arbitrator as per Clause 66, thus having lost the opportunity, it has to be appointed now by the court.;