Allowed

Leopoldina Erodina Dmello v. Cedric William Francis Pinto

Bombay HC5 Aug 2021AAR/6/2021

Case brief

AI extract

What is this about?

On a reference for appointment of an arbitrator under Section 11 of the Arbitration and Conciliation Act 1996, the Hon'ble High Court held that its jurisdiction is confined to examining the existence of an arbitration agreement. The court noted that challenges to the scope of the agreement are for the Arbitral Tribunal. Consequently, an independent Senior Advocate of the court was appointed as the

What did the court decide?

Appointed Mr. R. G. Ramani, Senior Advocate of the Court, as arbitrator to adjudicate the disputes between the parties.

Leopoldina Erodina Dmello Vs Cedric William Francis Pinto — Arbitration | Bombay HC (2021)

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5-AAR 6 2021

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Aura

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IN THE HIGH COURT OF BOMBAY AT GOA Application for Appointment of Arbitrator No.6 2021

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Ms. Leopoldina Erodina D'Mello, Camarcazana, Mapusa, Bardez, Goa …Applicant Versus Mr. Cedric William Francis Pinto, Duler, Mapusa, Bardez, Goa. …Respondent

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Mr. Rohit Bras De Sa, Advocates for the Applicant. Mr. A. D Bhobe, Advocate for the Respondent.

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CORAM: M. S. SONAK, J DATED: 5TH AUGUST, 2021

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P.C.

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1. Heard Mr. De Sa, the learned counsel for the applicant and Mr. A.D. Bhobe, the learned counsel for the respondent.

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2. This is an application seeking appointment of an arbitrator.

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3. The parties have entered into the agreement for Development cum Sale dated 6/3/2013. Clause 27 of this agreement reads as follows:

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27. It is hereby agreed that all the disputes which
may arise between the parties to this agreement

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whether in relation to the interpretation of the
clauses and conditions of the agreement and
about the performance of these presence or
concerning any act or commission of other party
or the dispute, or any of them or in relation to
any matter whatsoever concerning this
agreement, shall be referred to arbitration in
accordance with the provisions of the Indian
Arbitration Act 1940.”

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4. Thereafter, the parties have also entered into a sale deed as well as Memorandum of Understandings. Now, disputes have arisen between the parties and, therefore, this application seeks appointment of arbitrator.

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5. The respondents have resisted the appointment of arbitrator. Mr. Bhobe, the learned counsel for the respondent submits that after the agreement for Development cum sale, culminated into the execution of the sale deed, there is no question of referring to the arbitration clause in the agreement. He further submits that the record would bear out that there is no dispute whatsoever regards compliance with the terms and conditions of the agreement of Development cum sale. He submits that at the highest, what is falsely alleged is some noncompliance with the subsequent agreements, which contain no arbitration clauses. He, therefore, submits that this application for appointment of arbitrator may be dismissed.

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5-AAR 6 2021

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6. Mr. De Sa submits that the mother agreement in the present case is the agreement for development cum sale dated 6/3/2013. He submits that according to the applicant there is breach of this agreement and, therefore, the disputes which have been arisen relate to this agreement dated 6/3/2013. He relies on Chloro Controls India Private Ltd. Vs. Severn Trent water Purification INC and others (2013) 1 SCC 64 1.

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7. In such matters my jurisdiction is quite limited.

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8. In Duro Felguera, SA Vs. Gangavaram Port Limited, 2017 (9) SCC 729 , the Supreme Court in the context of Section 11 (6A) of the Arbitration and Conciliation Act 1996 has made the following observations:

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“48. Section 11(6-A) added by the 2015
Amendment reads as follows:

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“11. (6-A) The Supreme Court or, as the case
may be, the High Court, while considering any
application under sub-section (4) or sub-section
(5) or sub-section (6), shall, notwithstanding
any judgment, decree ororder of any court,
confine to the examination of the existence of
an arbitration agreement.”

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 (emphasis supplied)

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5th August 2021

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5-AAR 6 2021

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From a reading of Section 11(6-A), the
intention of the legislature is crystal clear i.e. the
court should and need only look into one
aspect-the existence of an arbitration agreement.
What are the factors for deciding as to whether
there is an arbitration agreement is the next
question. The resolution to that is simple-it
needs to be seen if the agreement contains a
clause which provides for arbitration pertaining
to the disputes which have arisen between the
parties to the agreement.

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59. The scope of the power under Section 11(6)
of the 1996 Act was considerably wide in view
of the decisions in SBP and Co. V. Patel Engg.
Ltd. (2005) 8 SCC 618 and National Insurance
Co. Ltd. v. Boghara Polyfab (P) Ltd. (2009) 1
SCC 267. This position continued till the
amendment brought about in 2015. After the
amendment, all that the courts need to see is
whether an arbitration agreement exists-nothing
more, nothing less. The legislative policy and
purpose is essentially to minimise the Court's
intervention at the stage of appointing the
arbitrator and this intention as incorporated in
Section 11(6-A) ought to be respected.”

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9. In Mayavti Trading Private Limited Vs. Pradyut Deb Burman, and Branch Manager. Magma Lesing and Finance Limited and anr. vs. Potluri Madhavilata and anr.,(2019) 8 SCC 714, the Hon'ble Apex Court has overruled its decision in United Insurance Company Limited Vs. Antique Art Exports

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5-AAR 6 2021

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Private Limited-(2019) 5 SCC 362 and affirmed it ruling in
Duro Felguera, SA (supra).

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10.Therefore, what is relevant at this stage is the existence of
the arbitration agreement. The issues raised by Mr. Bhobe may
very well be considered by the Arbitral Tribunal, once the same is
constituted. Merely because, the arbitrator is to be appointed that
does not mean that this Court has ruled one way or the other on
the rival contentions between the parties.

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11.Mr. R. G. Ramani, learned Senior Advocate of this Court is
proposed to be appointed as Arbitrator. He has furnished his
disclosure statement making it clear that no circumstances which
are likely to affect his ability to devote sufficient time to the
arbitration and his ability to finish the entire arbitration within
twelve months exist as on date. He has also declared that he has
no past or present relationship with or interest in any of the
parties or in relation to the subject-matter in dispute, which may
give rise to justifiable doubts as to his independence or
impartiality.

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12. This statement of disclosure is to be kept on record.

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13.Having regard to the aforesaid, Mr. R. G. Ramani, the
learned Senior Advocate of this Court is appointed as Arbitrator
to adjudicate into the disputes that have arisen between the
parties.

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14.The contentions raised by Mr. Bhobe are kept open and
will undoubtedly be considered by the Arbitral Tribunal now
appointed.

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15.All contentions of all the parties on merits are kept open to
be decided by the Arbitral Tribunal.

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16.The application for appointment of arbitrator is disposed of
in the aforesaid terms. There shall be no order as to costs.

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17.All concerned to act on authenticated copy of this order.

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M. S. SONAK, J.

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MARIA AURA Digitally signed by MARIA AURA PEREIRA PEREIRA Date: 2021.08.06 17:18:13 +05'30'

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5th August 2021

Leopoldina Erodina Dmello v. Cedric William Francis Pinto

Case brief

What is this about?

What did the court decide?

Leopoldina Erodina Dmello v. Cedric William Francis Pinto

Case brief

What is this about?

What did the court decide?

What the court decided

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