- (1.) I.A. No. 6409 of 2017 was preferred seeking substitution of the legal heirs of the deceased Respondent no.4 who had died during pendency of the application. Pursuant to the order dated 25.8.2017 the proposed legal heirs have already entered appearance through their counsel. Counter affidavit has also been filed on their behalf on 7.11.2017. Let they be formally substituted in place of the deceased Respondent no.4. Office to carry out the substitution.
(2.) I.A. no. 6409 of 2017 stands disposed of.
(3.) Pursuant to the order dated 24.11.2017, declaration in terms of Section 12(5) of the Arbitration and Conciliation Act, 1996 as amended by the Act no.3 of 2016 has been furnished by the proposed Arbitrator Mr. Gunendra Mohan Misra, which is at Flag-Y. Similar declaration has been submitted by the Arbitrator nominated by the Applicant, namely Mr. Satish Kumar Deo, which is at Flag-Z. By the order dated 24.11.2017, this Court proposed to appoint Gunendra Mohan Misra, learned Advocate of this Court as the second Arbitrator for adjudication of the dispute between the parties. The order dated 24.11.2017 is reproduced here under:- "Heard learned counsel for the parties. 2. In terms of Clause 29 of the agreement dated 26.8.2008 entered between the Petitioner and the Respondents, Petitioner who is the second party thereto, has sought appointment of the second Arbitrator after the Respondents failed to nominate Arbitrator from their side pursuant to the legal notice dated 01.12.2016 and 23.12.2016, invoking Section 11(6) of the Arbitration and Conciliation Act, 1996. 3. Counter affidavit have been filed respectively by the Respondent no.1,2,3,5,6 and 7. As per the learned counsel for the Respondents, common stand has been taken on behalf of all the Respondents. 4. According to the petitioner, parties entered into development agreement on 26.8.2008 in respect of land appertaining to M.S. Plot No. 631,632 area 3 Kattha 03 Chhatak and 2.5 sq feet approx. situated at Main Road, Ranchi P.S. Lower Bazar, House No. 711 (Annexure-1). The Respondents handed over the property to the Applicant with an undertaking that they would complete their part of the promise by undertaking mutation of the land, payment of revenue rent and provide up to date rent receipt as they are necessary for sanction of the building plan. The First Party/ Respondents failed to provide the same. It was also agreed that till the completion of the project, Petitioner would pay rent to the Respondents. Petitioner claims to have paid rent continuously. According to the Petitioner, huge amount has been paid to the Respondents as and when asked with an undertaking that the same would be returned and adjusted from the share of the Respondents. The Respondents were paid an amount of about Rs.45 Lakhs in such manner. 5. As per the statutory requirement, such development agreement are to be registered compulsorily. Despite request being made by the Petitioner, Respondents ignored the same, as a result of which, Petitioner could not make any effort for sanction of the building plan and get the project executed. In such circumstance, left with no other option, Respondents were served legal notice invoking Clause 29 of the agreement. As per Clause 29 of the agreement, in case of dispute between the parties, they could endeavour to resolve it amicably. On failure thereof, dispute would be resolved by arbitration. Both the parties would nominate their own Arbitrator. Thereafter, both Arbitrator would nominate the presiding Arbitrator. The cost of arbitration would be borne equally by both the parties. Since, the Respondents failed to nominate their own Arbitrator, petitioner was left with no other option but to approach this Court for appointment of an independent Arbitrator. 6. Respondents in their counter affidavit have taken the plea that they have cancelled the agreement. They are not ready for consent with regard to appointment of Arbitrator as they have nothing to survive upon. They are not in a position to pay the arbitration fee. Learned counsel for the Respondents further states that no efforts for amicable settlement have been made before seeking appointment of an Arbitrator in respect of the dispute in question. According to them they have provided all the required documents (original) demanded by the petitioner and mentioned in the said agreement dated 26.8.2008 in page 3 and page 4, para 2 or Annexure-1(main application) page 15 and page 16, para 2 in sub section (K, KH, G, GH, NG, CH). Petitioner has received all the required original documents along with power of attorney document and made signature on the said agreement dated 26.8.2008. It is the Petitioner who has violated the terms and conditions of the agreement. The contention of the Petitioner of payment of Rs. 45 Lakhs is false. The Respondents have not received any other amount except the rental amount of Rs. 3,80,000/- from 30.8.2008 to 12.12.2015. Xerox copy of the rental money receipts are enclosed as Annexure A1 to A19. Respondents have contended that petitioner tried to misuse the power of attorney by orally dealing with different buyer and there was plan to sell the property without consent of the original land lord. Subsequently, the Respondents revoked the power of attorney. Petitioner therefore has violated the terms and conditions of the said agreement. It is further alleged that cheque of Rs. 2, 50,000/- paid as advance on 14.8.2014 against the demolished property was dishonoured on 20.8.2014. Annexure-C is enclosed in support thereto. Respondents have strongly opposed the plea for appointment of the Arbitrator. Learned counsel for the Respondents submits that the stand taken by the rest of the Respondents is same as above. 7. I have considered the submission of the parties and the relevant material on record. The execution of the development agreement dated 26.8.2008 is not disputed by the Petitioner or the Respondents. Though the Respondents have stated that agreement was cancelled but there is no instrument of cancellation on record. The Respondents accepted receipt of rental in lieu of the development agreement till 12.12.2015. Respondents accepted receipts of certain payments, but denied the claim of the petitioner for payment of Rs.45 Lakhs. Though learned Counsel for the Respondents vehemently submitted that all the documents were handed over to the Petitioner as per the agreement but no copy of such documents or any receipt thereof has been brought on record. 8. Though learned counsel for the Respondents have contended that no efforts for conciliation have been made before seeking appointment of an Arbitrator but it has been answered by learned counsel for the Petitioner on the basis of averments contained in the counter affidavit itself that there was no scope for any conciliation when the Respondents had taken a stand that agreement itself was cancelled. Such cancellation of the agreement could not have been done without notice to the petitioner. There was transaction between the parties i.e. the rent were received till December, 2015 in terms of the development agreement dated 26.8.2008. Petitioner, in such circumstances served statutory notice upon the Respondents on 1.12.2016(Annexure-2 annexed with I.A. No.3255 of 2017), which referred to the development agreement as 13.9.2008. On being responded by the Respondents through legal notice dated 8.12.2016(Annexure-5), petitioner, thereafter again served the notice on 23.12.2016 (Annexure-4) with the correct date of agreement i.e. 26.8.2008, which does not stand refuted or answered. By the instant notice petitioner proposed to appoint Mr. Satish Kumar Deo S/o Sri Laxmi Narayan Deo as an Arbitrator on their behalf and made request to the Respondents to nominate their Arbitrator. On receipt of the legal notice dated 23.12.2016 the Respondents have failed to appoint their own arbitrator in terms of the agreement. 9. In such circumstance, the ingredients to invoke the jurisdiction of Hon'ble the Chief Justice or his delegate under Section 11(6) of the Arbitration and Conciliation Act, 1996 is satisfied. There is an agreement between the parties dated 26.8.2008 wherein the arbitration Clause 29 lays down the procedure for appointment of an arbitrator in case of any dispute between the parties. The statutory notice have been served by the Petitioner requesting the Respondents to appoint arbitrator from their side, which they have failed to do within 30 days. In such circumstances, this Court is satisfied that the prayer made for appointment of an independent arbitrator in terms of Clause 29 of the agreement dated 26.8.2008 deserves to be allowed. 10. Accordingly, I propose to appoint Mr. Gunendra Mohan Mishra, learned Advocate of this Court , resident of Bansal Plaza Apartment, Flat No.304(B) Station Road, Ranchi-834001, Mobile No. 9955165103, as the second arbitrator to adjudicate the dispute between the parties. A declaration in terms of Section 12(5) of the Arbitration and Conciliation Act, 1996 as amended by the Act of 3 of 2016 is therefore required to be submitted by the proposed arbitrator. Let the declaration be submitted by the proposed arbitrator within a period of 2 weeks by the parties . 11. Post this matter on 8th December as unfixed case under the same heading". ;