Case Note & Summary
The applicant, M/s. Hira Steel Limited, filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, seeking appointment of an arbitrator. The dispute arose from a contract for sale and purchase of Indian Iron Ore between the applicant as buyer and the respondent, M/s. Prasanna V. Ghotage, as seller. The applicant alleged breach of contract and had previously filed an application under Section 9 of the Act before the District Judge, Panaji, for interim relief, which was pending. The applicant invoked the arbitration clause (Clause 14) in the Memorandum of Understanding (MOU) via communication dated 27.1.2012. Despite exchange of correspondence, the respondent failed to appoint an arbitrator. The court, after hearing both parties, noted that the arbitration clause existed and the respondent had not appointed an arbitrator. The court allowed the application and appointed Mr. Justice N.A. Britto, a former Judge of the Bombay High Court, as the sole arbitrator to adjudicate the disputes between the parties.
Headnote
A) Arbitration Law - Appointment of Arbitrator - Section 11(6) Arbitration and Conciliation Act, 1996 - Applicant sought appointment of arbitrator due to breach of contract for sale of iron ore - Court found that arbitration clause existed in MOU and respondent failed to appoint arbitrator despite notice - Held that applicant is entitled to appointment of arbitrator (Paras 1-3).
Issue of Consideration
Whether the applicant is entitled to appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, given the existence of an arbitration clause in the MOU and the respondent's failure to appoint an arbitrator.
Final Decision
The court allowed the application and appointed Mr. Justice N.A. Britto, a former Judge of the Bombay High Court, as the sole arbitrator to adjudicate the disputes between the parties.
Law Points
- Section 11(6) of Arbitration and Conciliation Act
- 1996
- Appointment of arbitrator
- Failure to appoint arbitrator
- Existence of arbitration agreement
Case Details
2013 LawText (BOM) (12) 103
Application for Appointment of Arbitrator No. 16 of 2012
Dr. Harsh Pathak, Mr. Rohit Bras De Sa, Mr. Clayton Fonseca (for applicant), Mr. Deep Shirodkar (for respondent)
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Nature of Litigation
Application for appointment of arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Remedy Sought
Applicant sought appointment of an arbitrator to adjudicate disputes arising from a contract for sale and purchase of Indian Iron Ore.
Filing Reason
Alleged breach of contract by the respondent and failure to appoint an arbitrator despite invocation of arbitration clause.
Previous Decisions
An application under Section 9 of the Act was filed before the District Judge, Panaji, which was pending.
Issues
Whether the applicant is entitled to appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996.
Submissions/Arguments
Applicant argued that there was an arbitration clause in the MOU and respondent failed to appoint an arbitrator despite notice.
Respondent's arguments are not mentioned in the judgment text.
Ratio Decidendi
Under Section 11(6) of the Arbitration and Conciliation Act, 1996, if a party fails to appoint an arbitrator as required under the arbitration agreement, the other party may approach the court for appointment of an arbitrator. The existence of an arbitration clause and failure to appoint an arbitrator entitles the applicant to such relief.
Judgment Excerpts
The applicant has approached this Court invoking jurisdiction of this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996.
That a contract for sale and purchase of Indian Iron Ore was entered between the respondent as a seller and the applicant as a buyer.
The applicant thereafter invoked clause 14 of Memorandum of Understanding ('MOU' for short), vide communication dated 27.1.2012.
Procedural History
The applicant filed an application under Section 9 of the Act before the District Judge, Panaji, for interim relief, which was pending. Thereafter, the applicant invoked the arbitration clause via communication dated 27.1.2012. After exchange of correspondence, the applicant filed the present application under Section 11(6) for appointment of an arbitrator.
Acts & Sections
- Arbitration and Conciliation Act, 1996: Section 11(6), Section 9
