Allowed

M/S Abs Marine Services Pvt. Ltd. v. the Lieutenant Governor and Anr.

Calcutta HC16 Sept 2021AP/8/2021

Case brief

AI extract

What is this about?

This court treated an application for arbitrator replacement as one for appointment due to the Administrator's failure to appoint. Appointing the successor himself under Section 11(4) since the designated authority did not act within thirty days.

What did the court decide?

Appointed Justice Subhro Kamal Mukherjee (retired) as sole Arbitrator to decide the dispute.

M/S Abs Marine Services Pvt. Ltd. Vs the Lieutenant Governor… — Arbitration | Calcutta HC (2021)

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IN THE HIGH COURT AT CALCUTTA

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[CIRCUIT BENCH AT PORT BLAIR ]

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AP/ 008/2021

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M/s ABS Marine Services Pvt. Ltd. … Petitioner Vs. The Lt. Governor and Another … Respondents

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Mr. Mohd. Tabraiz, Advocate … for the petitioner Mr.Krishna Rao, Advocate … for the respondents

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September 16, 2021 [GNC]

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Item No.3

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Though the application has been captioned as an application under Section 15(2) of the Arbitration and Conciliation Act, 1996 for replacement of the Arbitrator but from the pleadings and the submissions advanced by both the parties in effect the application is for appointment of the Arbitrator as the competent authority despite the notice having served upon him failed to appoint the Arbitrator.

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It is not in dispute that a agreement was entered into which contains an arbitration clause providing appointment of an Arbitrator in the event of dispute having arisen therein by the Lieutenant Governor (Administrator), Andaman and Nicobar Islands. The dispute arose and the applicant herein invoked arbitration clause and made requisition to the Administrator to appoint an Arbitrator in terms of the said agreement. Shri Sudhir Kumar Sinha, the Principal Officer, Mercantile Marine Department, Kolkata was appointed as Arbitrator vide Order No.

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2824 dated 01^st September, 2015. The said Arbitrator could not continue with the arbitration proceeding having transferred from Kolkata and showed his inability to act in such capacity which led the appointment of another Arbitrator i.e. Shyam Barik. The said Arbitrator also showed his inability as he has been transferred from Kolkata to Mumbai and a notice was given to the Administrator on 26^th August, 2019 to appoint another Arbitrator in place of Mr. Shyam Barik. The Administrator appointed Capt. K.P. Jaikumar, Principal Officer, Mercantile Marine Department, Kolkata as sole Arbitrator on 9^th December, 2019.

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Though it is submitted by Mr. Tabraiz before me that since the said Arbitrator was not proceeding, an arbitration petition was filed before this court being AP Nos. 5,6 and 7 of 2020. The copy of the order disposing of the aforesaid arbitration applications are annexed to the instant application. While disposing of the aforesaid applications on February 22, 2021, it appears that a pivotal issue which was raised before this court was that the said Arbitrator cannot continue with the arbitral proceedings because of the amendment having brought in section 12 of the Arbitration and Conciliation Act read with Schedule V appended thereto. The court without venturing into such disputed arena directed the said Arbitrator to proceed with the arbitration proceeding through virtual or hybrid mode as the exigency so demand so that the proceeding can be brought to its logical end at an earliest. The last appointed Arbitrator showed

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his inability to proceed with the arbitration citing the ground of transfer. The request was again made to the Administrator to appoint an Arbitrator as the arbitration agreement provides such procedure. Despite the receipt of the letter requesting the appointment of an Arbitrator more than 30 days has elapsed and no appointment has been made.

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Sub-section (4) of section 11 of the Act postulates that if an agreement provides the modalities for appointment of an Arbitrator and if the parties failed to agree on the Arbitrator within 30 days from the date of receipt, the appointment can be made by the Chief Justice of the concerned High Court.

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As indicated above, indubitably despite the request having receipt from the petitioner there is an apparent failure on the part of the Administrator to appoint the Arbitrator. This court does not find any impediment in appointing the Arbitrator as the earlier Arbitrators have showed their unwillingness and inability to continue with the arbitration proceedings.

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There is no dispute that the agreement contains an arbitration clause as the said clause/agreement was invoked and implemented by the Administrator in appointing the Arbitrator and therefore, the legality and validity of the said agreement cannot be doubted.

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Justice Subhro Kamal Mukherjee (retired) is appointed as a sole Arbitrator to enter upon the reference and decide the disputes. The remuneration of the Arbitrator shall be borne equally by the parties in terms of Schedule IV of the said Act.

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Apart from the same, the parties shall share equally the conveyance charges, stay and the lodging as well as the secretarial charges of the sole Arbitrator.

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Accordingly, the application is allowed.

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( Harish Tandon, J. )

M/S Abs Marine Services Pvt. Ltd. v. the Lieutenant Governor and Anr.

Case brief

What is this about?

What did the court decide?

M/S Abs Marine Services Pvt. Ltd. v. the Lieutenant Governor and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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