Mohammad Rafiq, J. - (1.) Applicant Classic Enterprises Limited, a registered company under the Indian Companies Act, 1956, has filed this application under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of third Arbitrator in terms of Section 1996 of the Arbitration and Conciliation Act, 1996 (for short, 'the Act of 1996'). Applicant obtained insurance policy for its factory situated at Bhiwari, District Alwar, from non-applicant United India Insurance Company Limited, for the period from 01.07.2010 to 30.06.2011, for a sum of Rs. 21.67 crores. There took place an incident of fire in the factory premise of applicant on 05.06.2011. Applicant, on the very next date, informed non-applicant about the incident. Non applicant appointed surveyor and loss assessor. The assessed loss, according to applicant, was covered within the purview of insured sum. The applicant raised insurance claim with respondent for a claim of Rs. 18,43,50,000/- (Rupees eighteen crore forty three lakh and fifty thousand only). Upon reconciliation, applicant submitted a revised claim bill with non-applicant company on 05.08.2011 for a sum of Rs . 16,66,35,435/- (Rupees sixteen crore sixty six lakh thirty five thousand four hundred and thirty five only). However, on 24.02.2012 the surveyor recommended a sum of Rs. 6,00, 00,000/- (Rupees six crore), as an account payment, which was paid to the applicant. According to applicant, the non-applicant further paid a sum of Rs. 3,43,10,310/- (Rupees three crore forty three lakh ten thousand three hundred and ten only) on 03.04.2013 and a sum of Rs. 2,22,94,600/- (Rupees two crore twenty two lakh ninety four thousand and six hundred only) on 29.04.2013, respectively, to applicant. Thus, a total sum of Rs. 11,66,04,910/- (Rupees eleven crores sixty lakhs four thousand nine hundred and ten only) has been paid to the applicant.
(2.) Applicant thereafter raised protests through e-mails on 29.04.2013 and 06.05.2013 regarding payment of balance amount approximately Rs. 2,15,01,272 (Rupees two crore fifteen lakh two hundred and seventy two only). Non-applicant called upon the applicant to furnish a receipt on stamp paper a full and final settlement as pre-condition for release of balance amount. Despite furnishing aforesaid receipt on stamp paper, non-applicant has not released the balance amount to the applicant. Applicant then on 28.11.2013 sent a letter to the non-applicant regarding due payment. Non-applicant, vide e-mail dated 17.12.2013, approved payment of Rs. 1,08,00,000/- (Rupees one crore and eight lakh only) to applicant, which was acknowledged by the applicant vide letter dated 20.12.2013. Applicant, in that letter, also requested non-applicant to clear balance amount and settle the same at the earliest possible. However, non-applicant did not make any other payment thereafter.
(3.) Shri Achintya Kaushik, learned counsel for applicant, referred to Clause 13 of the insurance policy, according to which, if any dispute/differences arise regarding quantum of payment, the same shall be referred to sole arbitrator to be appointed in writing by the parties to or if they cannot agree upon a single arbitrator, within thirty days of any party invoking arbitration, the same shall be referred to a panel of three arbitrators comprising of two arbitrators - one to be appointed by each of the parties to the dispute/difference and the third arbitrator to be appointed by such two arbitrators and arbitration shall be conducted in accordance with the provisions of the Act of 1996. Learned counsel for applicant submitted that despite request of applicant, non-applicant failed to make payment of the balance amount, therefore there is a dispute regarding quantum of claim amount to be paid by non-applicant to applicant, which was required to be resolved through arbitration in terms of Clause 13 of the insurance policy. Applicant therefore on 18.02.2014, invoked arbitration clause and nominated Shri O.P. Agarwal, Director of M/s. R.L. Agarwal Surveyors Private Limited, Surveyors and Loss Assessors to be the sole Arbitrator in the matter and called upon the non-applicant to give its consent within thirty days from the date of the receipt of the said arbitration notice. However, Shri Shiv Vyas, the counsel for non-applicant, sent a letter to applicant on 24.03.2014, intimating about nomination of Shri N. Veeraraghavan as the nominee arbitrator for non-applicant. In the same letter, it was requested that Shri O.P. Agarwal, nominee arbitrator of applicant, may be asked to interact with nominee arbitrator of non-applicant for appointment of third arbitrator with mutual consent. Applicant accordingly asked his nominee arbitrator to do so. However, applicant received communication on 01.07.2014 from his nominee arbitrator Shri O.P. Agarwal, intimating that two respective nominee arbitrators had not been able to reach a consensus on the name so as to appoint third arbitrator. Hence this application.;