M/S Amit Singh, Through v. M/S Jaipur Zila Dugdh Utpadak Sahakari Sangh Limited,Address- Near Gandhi Nagar Railway Station, Jaipur302015

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Arbitration Application No. 113/2021 M/s Amit Singh, Through Proprietor Amit Singh Office At L-31Income Tax Colony, Tonk Road, Jaipur, Rajasthan. ----Petitioner Versus 1. M/s Jaipur Zila Dugdh Utpadak Sahakari Sangh Limited,Address- Near Gandhi Nagar Railway Station, Jaipur302015, Through Its Managing DirectorAddress- Near Gandhi Nagar Railway Station, Jaipur302015, Through Its Managing Director 2. Manager (Marketing), Jaipur Zila Dugdh Utpadak SahkariSangh Ltd., Address- Near Gandhi Nagar Railway Station,Jaipur 302015,Sangh Ltd., Address- Near Gandhi Nagar Railway Station,Jaipur 302015, ----Respondents For Petitioner(s) : Mr. Purushootam Lal Hissaria with Mr. Dinesh HissariaMr. Dinesh HissariaFor Respondent(s): Mr. Gunjan Pathak with Ms. Ishita Rawat & Mr. Aditya Bohra HON'BLE MR. JUSTICE PANKAJ BHANDARI Order ORDER RESERVED ON ::ORDER PRONOUNCED ON :: 17/02/2022 02/03/2022 1. Applicant has filed this Arbitration Application seeking appointment of an arbitrator in terms of the agreement dated24.04.2015. 2.Brief facts of this case are that in identical cases i.e.Arbitration Application Nos.7/2020, 8/2020, 9/2020, 10/2020,11/2020 and 12/2020 were allowed by this Court vide order dated02.03.2021 and 03.03.2021 and an independent arbitrator Dr.Kamal Dutta (Rtd. District and Sessions Judge) was appointed to act as an Arbitrator and to decide the issue involved in these casesin accordance with the Arbitration and Conciliation Act, 1996. 3.It is contended by counsel for the applicant that asimilar type of Arbitration Application bearing No.10/2020 wasfiled before the High Court, wherein Arbitrator was appointed bythe High Court vide Order dated 02.03.2021. Aggrieved by thesaid order, respondents preferred SLP before the Apex Courtbearing No.13520/2021, wherein Apex Court upheld the orderspassed by the High Court. 4.It is also contended by counsel for the applicant thatDr. Kamal Dutta (Rtd. District and Sessions Judge) was appointedas an Arbitrator and since the dispute is on same lines, she maybe appointed as an Arbitrator in the present case as well. 5.Per contra, counsel for the respondents submits that asper Section 12(1)(b) read with Clause 24 of the Fifth Schedule ofArbitration and Conciliation Act, 1996, a person cannot be anArbitrator in multiple cases. It is contended that Dr. Kamal Dutta(Rtd. District and Sessions Judge) has already been appointed asan Arbitrator in more than five cases. It is also contended bycounsel for the respondents that claims were also presentedbefore the Chairman and the arbitration proceedings should becommenced from that stage. 6.I have considered the contentions. 7.The present arbitration application is identical to thearbitration applications which were preferred before the Court andwere disposed of by the High Court vide order dated 02.03.2021and 03.03.2021. Respondents have raised the objections withregard to appointment of Dr. Kamal Dutta (Rtd. District and Sessions Judge) in view of Section 12 (1)(b) read with Clause 24of the Fifth Schedule of Arbitration and Conciliation Act, 1996. 8.As per the Fifth Schedule of the Arbitration andConciliation Act, 1996, certain grounds give rise to justifiabledoubts as to the independence or impartiality of arbitrators andClause 24 the same provides as under:- “The arbitrator currently serves, or has served within the pastthree years, as arbitrator in another arbitration on a related issueinvolving one of the parties or an affiliate of one of the parties.” Thus, to avoid further doubt as to impartiality and also to ensurethat award is passed without delay, this Court deems it proper toappoint a different arbitrator. Sessions Judge) in view of Section 12 (1)(b) read with Clause 24of the Fifth Schedule of Arbitration and Conciliation Act, 1996. 8.As per the Fifth Schedule of the Arbitration andConciliation Act, 1996, certain grounds give rise to justifiabledoubts as to the independence or impartiality of arbitrators andClause 24 the same provides as under:- “The arbitrator currently serves, or has served within the pastthree years, as arbitrator in another arbitration on a related issueinvolving one of the parties or an affiliate of one of the parties.” Thus, to avoid further doubt as to impartiality and also to ensurethat award is passed without delay, this Court deems it proper toappoint a different arbitrator. 9.Further, the contention of counsel for the respondentsthat claim was presented before the Chairman and the arbitrationproceedings should commence from that stage, is not sustainablefor the very reason that the Chairman suffered disqualification asper sub-section (5) of Section 12 read with Seventh Schedule ofthe Arbitration and Conciliation Act, 1996 and the Chairman hasnot acted upon the claim filed before it. The contention of counselfor the respondents that in de novo pleadings applicant mayinflate his claim cannot be entertained for the very reason that therespondents would be free to raise all valid objections that theyhave before the Arbitrator. 10.Taking note of the objections raised by counsel for therespondents and to avoid further doubt as to impartiality and alsoto ensure that award is passed without delay, this Court deems itproper to appoint an Arbitrator to decide the dispute. 11.This Court appoints Shri Askaran Prajapat, R/o-73,Nemi Nagar, Near DAV Public School, Vaishali Nagar, Jaipur as anArbitrator to decide the dispute. 12.Accordingly, Arbitration Application stands allowed. Thearbitrator shall be entitled to lay down fees as provided underManual of Procedure for Alternative Disputes Resolution, 2009 asamended from time to time. 13.Registry is directed to intimate Shri Askaran Prajapatand obtain his formal consent. 14.Stay application stands disposed. (PANKAJ BHANDARI),J CHANDAN /37