Slp against order u/s 11 of arbitration act
Ashok Shah
(Querist) 22 September 2015
This query is : Resolved
HOn'ble judge of HIgh Court dismissed the petition on the ground that "Since the petitioner cannot proceed to appropriately deal with the objection canvassed under section 69(2) of the Partnership Act, 1932, A.P. No. 1552 of 2014 is dismissed for default. The petition may be revived upon the petitioner being adequately ready to deal with the challenge.
There will be no order as to costs."
My view : If petitioner can not proceed appropriately, then petition should have been dismissed and not dismissed for default.
Again, when petition was restored, ON 22ND JULY WITHOUT REFERRING TO THE ABOVE MATTER BY HON'BLE JUDGE. THE FOUR COPIES OF ORDERS ARE ATTACHED HEREWITH FOR YOUR PERUSAL.
WE NEED YOUR ESTEEMED SUGGESTION AS TO SHOULD WE FILE SLP.
FOUR ORDERS IN FOUR PDF FILES ATTACHED HEREWITH FOR YOUR PERUSAL. MY EMAIL ID IS AKVSHAH@GMAIL.COM
ORDER COPY GIST IS GIVEN HEREUNDER
ORDER DATED 10-08-2015
CAL CUTTA Ordinary Original Civil Jurisdiction ORIGINA L SIDE
JUSTICE SANJIB BANERJEE
D ate : August 10, 2015.
The Court : The respondents are not represented despite previous service and despite the proforma respondents being represented at one point of time.
This is a request under Section 11 of the Arbitration and Conciliation Act, 1996, founded on the arbitration clause contained in a partnership deed of January 5, 2009 in respect of a firm of chartered accountants.
The petitioners say that the principal dispute is as to whether the first respondent has resigned from the firm or not. One of the proforma respondents, according to the petitioners,appears to support the first respondent.
The petitioners invoked the arbitration agreement by a letter dated July 23, 2014. The petitioners nominated a chartered accountant of their choice as the arbitrator. The notice was duly received by the first respondent and replied to on August 10, 2014. The first
respondent asserted that since it was the contention of the petitioners that the first respondent had resigned from the firm, the arbitration clause may not apply. The first respondent also made a counter-suggestion as to the personnel of the arbitrator in
paragraph 2(b) of the reply. Since it is evident from the first respondent’s reply to the notice of invocation that there is no dispute as to the physical existence of the arbitration agreement and since the first respondent did not agree to the petitioners’ nominee as arbitrator, the appointment has to be made by the Chief Justice or her designate.
Mr. Utpal Bose, Sr. Advocate, is appointed arbitrator at a consolidated remuneration of Rs.6 lakh to be shared by the petitioners on the one hand and the first respondent and any supporting proforma respondents on the other at the first instance. The arbitrator will be free to decide on which of the parties should bear the arbitrator’s remuneration while issuing directions in the final award.
The petitioners reckon that the reference should take no more than three months from the completion of the pleadings. The petitioners have agreed to file their statement of claim within three weeks from date.
The order was pronounced by naming a chartered accountant as arbitrator in accordance with the arbitration agreement. Advocate for the respondents appeared at such stage and suggested that a lawyer be appointed as arbitrator. Since the petitioners have accepted such suggestion, the choice of the personnel of the arbitrator reveals a departure from the arbitration agreement. AP No. 1552 of 2014 is disposed of without any order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.)
sg.
ORDER DATED 21-07-15
OD-84 G.A. No. 2166 of 2015
With
A.P. No. 1552 of 2014
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date: 21st July, 2015.
Appearance:
Mr. Rajeev Kr. Jain, Adv. appears
Mr. T. Tiwary, Adv. appears
Mr. Ashok Kumar Vanchand Shet, appears
The Court: Sufficient grounds have been made out as to why the petitioners were unable to proceed with the request under Section 11 of the Arbitration and Conciliation Act, 1996 when the matter was taken up on June 30, 2015.
The order dated June 30, 2015 is recalled and AP No. 1552 of 2014 is restored to the file. AP No. 1552 of 2014 will appear as ‘Adjourned Motion’ in the monthly list of August, 2015. The restoration application being GA No. 2166 of 2015 is allowed as above but without any order as to costs.
(SANJIB BANERJEE, J.)
sg2
ORDER DATED 30-06-15
The Court : Since the petitioner cannot proceed to appropriately deal with the objection canvassed under Section 69(2) of the Partnership Act, 1932, A.P.No.1552 of 2014 is dismissed for default. The petition may be revived upon the petitioner being adequately ready to deal with the challenge.
There will be no order as to costs.
(SANJIB BANERJEE, J.)
A/s.
ORDER DATED 10-12-14
ORDER SHEET
AP No. 1552 of 2014
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SUBHASH CHANDRA SARAR & ORS.
The Hon'ble JUSTICE BISWANATH SOMADDER
Date : 10th December, 2014.
The Court: Having heard the learned advocates for the parties and upon perusing the instant application filed under section 11 of the Arbitration and Conciliation Act, 1996, it appears that this matter cannot be disposed of without calling for affidavits.
Accordingly, let affidavit-in-opposition be filed within a week from date; reply, if any, within a week thereafter.
List this matter under the heading, “Arbitration Motion Adjourned” a fortnight after Christmas vacation.
(BISWANATH SOMADDER, J.)
akb/
Anirudh
(Expert) 22 September 2015
I think you have not clearly understood the order of the High Court.
The High Court has in fact dismissed the Arbitration Petition. The HC has only given the reason why the petition was dismissed and the reason given was that there was default on the part of the petitioner to meet the objection taken by the Respondent under Rule 69(2).
Ashok Shah
(Querist) 22 September 2015
Whether SLP can filed to stay arbitration proceeding in the matter?
Whether it can be proved that High Court erred in restoring application / petition without referring to Section 69 of the partnership agreement based on which the petition was dismissed
Whether High court, once agreed that petitioner could not prepare himself to canvass for argument be allowed a chance to apply for restoration of dismissed for default petition instead of dismissing the petition in toto?
Main question at this point of time is whether SLP will lie to get stay on arbitraton proceedings?
R.K Nanda
(Expert) 30 September 2015
query too long.
Ashok Shah
(Querist) 04 October 2015
Query is very short. copy of four high court order has been written for full brief.
