Applicant sought appointment of an arbitrator under a Franchise Agreement dated 31.03.2019, invoking arbitration by notice dated 19.07.2020. The respondent denied signing the agreement. Holding no dispute over the arbitration clause, the court appointed Advocate Naira Jeejeebhoy as Sole Arbitrator and disposed of the application.
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(36)ARBAP-8-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION APPLICATION NO.8 OF 2022
Iosis SPA and Welness Pvt. Ltd. ] .. Applicant vs. Arnav Enterprise ] .. Respondent
Ms.Fatima Barodawalla, for the Petitioner.
Ms.Siddh Vidya a/w Shalaka Karkar i/b Sidddh Vidya & Associates for the Respondent.
CORAM : BHARATI DANGRE, J
DATE : 11th January, 2024.
P.C.
1] A Franchise Agreement dated 31.03.2019 entered between the Petitioner and the Respondent is the cause for disputes between them, as according to the Applicant, the Agreement came to be terminated and it was imperative for the Respondent to abide by the obligations contemplated therein and in particular, pursuant to the termination which included handing over of the equipments and discontinuation of the use of the Franchisee name.
2] As the dispute occurred between the parties, Arbitration was invoked by the Applicant vide notice dated 19.07.2020 indicating the nature and width of the dispute between the parties and specifically alleging breaches under the Agreement covering distinct items.
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(36)ARBAP-8-2022.doc
The lengthy notice highlight the alleged misconduct on the part of the Respondent and the claim of Rs.62,25,582/- is set out in Para 41 of the notice.
3] Clause 23 of the Agreement was invoked for the purpose of resolving the dispute and even the name of proposed Arbitrator was set out calling upon the Respondent to submit about the same within a period of 7 days.
The notice was received by the Respondent and in the Email communication dated 20.07.2020, it took a stand that he had not signed the Agreement on 31.03.2019 i.e. Agreement/forms and the notice is based on the misconceived invocation of Section 21 of the Act, and, therefore, no arbitration process can be initiated.
Apart from this, it was also stated that since the documents were forged and the police were investigating into the same, the Applicant shall not proceed ahead. Another invocation notice is also placed on record, which reiterate the same facts.
4] In the wake of above, since there is no dispute about arbitration clause in the Agreement, Arbitration has been invoked by the Applicant with no response at the end of the Respondent within the period stipulated, I deem it appropriate to exercise power under sub section 6 of Section 11 of the Arbitration and Conciliation Act.
5] In the wake of the above, Advocate Naira Jeejeebhoy, is appointed as Sole Arbitrator to adjudicate the disputes and differences that have arisen between the Applicant and the Respondent.
The Arbitrator shall, within a period of 15 days before entering the arbitration reference forward a statement of disclosure as contemplated
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(36)ARBAP-8-2022.doc
u/s.11(8) r/w Section 12 of the Arbitration and Conciliation Act, 1996, to the Prothonotary and Senior Master of this Court to be placed on record.
The Arbitrator, shall after entering the reference fix the date of first hearing in the week commencing from 29/1/2024 and issue further directions as are necessary.
The Sole Arbitrator shall be entitled for the fees as per Bombay High Court (Fee Payable to Arbitrators) Rules, 2018 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the final Award that may be passed by the Tribunal.
All rights and contentions of the parties are kept open.
Arbitration Application No.8 of 2022 stand disposed off in the aforesaid terms.
[BHARATI DANGRE, J]
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1 issue framed by the court
Whether the court should appoint a sole arbitrator on the applicant's invocation under Clause 23 of a Franchise Agreement despite the respondent disputing execution of the agreement.
2 provisions across 1 enactments
Iosis SPA and Welness Pvt. Ltd.
Arnav Enterprise
Bharati Dangre
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
