Arihant Shivank Infra Projects Ltd v. Raghunath Prasad Jain

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Arbitration Application No. 29/2020 Arihant Shivank Infra Projects Ltd., Through Its Director Mr.Rishabh Goel Having Its Office At Second Floor, Class Of Pearl,Income Tax Colony, Tonk Road, Jaipur Rajasthan ----Petitioner Versus Raghunath Prasad Jain S/o Late Sh. Govind Ram Jain, AgedAbout 80 Years, Residing At A-104, Gujarwala Town, New Delhi-110009 And Plot No. 9, Devi Nagar, Tonk Road, Jaipur Rajasthan302001 ----Respondent For Petitioner(s) : Mr. Nitish Kumar BagriFor Respondent(s): Mr. Pradeep Kumar Bharadwaj HON'BLE MR. JUSTICE PANKAJ BHANDARI Order 03/08/2022 1.Applicant has preferred this arbitration applicationunder Section 11 of the Arbitration and Conciliation Act, 1996 forappointment of an arbitrator. 2.It is contended that an agreement was entered intobetween the parties, wherein Clause-15 is the Arbitration Clause.A dispute took place between the parties and both have claimedagainst each other and a notice was given by the applicant on27.01.2020 asking the non-applicant to agree to the arbitration byJustice Banwari Lal Sharma. It was mentioned in the letter thatsince the arbitrators named in the agreement are related to theparties, they cannot be appointed as an arbitrator in view ofArbitration and Conciliation Act. 3.It is contended that in reply to the said notice, the non-applicant has also suffered huge loss as the land investment isstuck, however, the non-applicant did not agree to the arbitrationby Justice Banwari Lal Sharma and in reply stated that arbitratorshould be the one named in the arbitration agreement. 4.Counsel for the non-applicant states that he also hasthe claim and if the matter is to be referred, it should be anindependent arbitrator and the non-applicant should also bepermitted to raise his claim before the arbitrator. 5.I have considered the contentions. 6. Clause-15 reproduced as under:- “;g fd izFke i{k bl ys[k&i= esa f}rh; i{k dks iw.kZ :i ls vk’oLr djrs gS fd os mDr Hkwfe] ftl ijcgqeaftyk vkoklh; vikVZesaV cukuk izLrkfor gS] dh Hkwfedks fdlh Hkh O;fDr] cSad] ljdkj vFkok laLFkk bR;kfn dsfgr esa jgu] foØ;] c['kh’k] yht bR;kfn }kjk gLrkUrfjrugha djsaxsaA ;g fd izFke i{k ,oa f}rh;i{k ds e/; fdlh Hkhizdkj ds fokn dh fLFkfr esa fookn dk fuiVkjk nksuksa i{kksa }kjk fu;qDr vius&vius ,d&,d vkfcZVªsVj }kjk fn;k x;kfu.kZ; izFke ,oa f}rh;i{k dks loZekU; Lohdkj gksxkAvkfcZVªsVj Jh eqds’k tSu iq= j?kqukFk izlkn tSu] vk;q&50o"kZ fuoklh ,&104] xqtjkuokyk Vkmu] ubZ fnYyh ,oa Jh^lUrks"k dqekj tSu iq= Lo- Jh enuyky tSu] fuoklhch&102] lsBh dkWyksuh] t;iqjA” 7.It is evident that the parties have agreed to refer the dispute to arbitration, however, the persons named in the clauseare related to the parties, hence, they cannot be appointed as anarbitrator. I, therefore, deem it proper to allow the arbitrationapplication and appoint Justice Sangeet Lodha (Retd. High Court Judge) as an arbitrator to adjudicate the dispute between the parties. 6.The appointment of the sole arbitrator is subject to thedeclarations being made under Section 12 of the Arbitration andConciliation Act, 1996 with respect to the independence andimpartiality, and the ability to devote sufficient time to completethe arbitration within prescribed period. 7.Accordingly, application stands allowed. The arbitratorshall be entitled to lay down fees as provided under Manual ofProcedure for Alternative Disputes Resolution, 2009 as amendedfrom time to time. 8.Registry is directed to intimate Justice Sangeet Lodha(Retd. High Court Judge) and obtain his formal consent. (PANKAJ BHANDARI),J CHANDAN /3