Dismissed

Evolutionary Systems Private Limited v. Abhishek Tulsyan

Gujarat HC11 Nov 2022ARBI.P/147/2022

Case brief

AI extract

What is this about?

This common order dismissed multiple petitions filed under Section 11 of the Arbitration and Conciliation Act, 1996, seeking appointment of an arbitrator. The Court held the petitions premature as the parties had not attempted amicable consultations as a precondition under the arbitration clause before seeking judicial intervention.

What did the court decide?

Partitions filed under Section 11(6) were dismissed with liberty to file a fresh petition after complying with the agreed dispute resolution mechanism.

Evolutionary Systems Private Limited Vs Abhishek Tulsyan — Arbitration | Gujarat HC (2022)

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C/ARBI.P/141/2022 ORDER DATED: 11/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/PETN. UNDER ARBITRATION ACT NO. 141 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 142 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 143 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 144 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 145 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 146 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 147 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 149 of 2022 With R/PETN. UNDER ARBITRATION ACT NO. 150 of 2022

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========================================================== EVOLUTIONARY SYSTEMS PRIVATE LIMITED

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Versus

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MAHIRALI SAIYED

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========================================================== Appearance:

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MR MJ MEHTA(5797) for the Petitioner(s) No. 1 MR SAURABH J MEHTA(2170) for the Petitioner(s) No. 1 for the Respondent(s) No. 1

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==========================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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Date : 11/11/2022

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COMMON ORAL ORDER

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Present petitions are filed under section 11(6) of the Arbitration and Conciliation Act, 1996 seeking for appointment of an Arbitrator contending inter alia that under

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Page 1 of 4

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C/ARBI.P/141/2022 ORDER DATED: 11/11/2022

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the agreement dated 03.02.2020 entered into between petitioner and respondent, it was agreed that if there were to be any dispute arising out of said agreement, it would be resolved through arbitration and on account of said agreement, notice was issued to the respondent on 03.01.2022 and there is no response to the same and hence, petitioner is seeking for appointment of an arbitrator.

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In order to examine whether it is a fit case for issuance of notice, the arbitration clause which has been pressed into service, requires to be taken note of. It reads :

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“8. This agreement shall be governed by and construed in accordance with the laws of India. Any dispute or issue if any arising out of touching this Agreement, if not resolved within thirty (30) days of amicable consultations, shall be referred to the arbitration under the Arbitration and Conciliation Act, 1996 in English language at the venue of Ahmedabad, Gujarat. It is expressly agreed that the arbitral award shall be final and binding upon the parties hereto, and the final jurisdiction shall be with the courts of Ahmedabad, Gujarat.”

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A plain reading of the above clause would indicate that parties have agreed that any dispute or issue arising out

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of touching the Agreement, if not resolved within thirty (30)

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Page 2 of 4

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C/ARBI.P/141/2022 ORDER DATED: 11/11/2022

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days of amicable consultations, then it would be give a cause of action to either of the parties to seek for appointment of Arbitrator. In the instant case, there is no material produced to indicate that on alleged dispute arising under the agreement dated 03.02.2020, an attempt has been made to settle the dispute by amicable consultation. However, learned counsel appearing for petitioner would vehemently contend that an e-mail was sent on 25.03.2021 to the respondent and it was not replied to, which would indicate that resolution of disputes by consultations was attempted and it had utterly failed. The said submission though attractive at first blush, it is not so for the simple reason that perusal of e-mail dated 25.03.2021 which has been referred to in paragraph 3.4 of petition would only indicate that there was a demand made by petitioner for certain amount of payment from the respondent. It does not even remotely suggest that petitioner has exhibited its inclination for resolution of disputes by consultation as agreed. As such, this Court is of the considered view that present petitions is pre-mature. Reserving liberty to the petitioner to avail the

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Page 3 of 4

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C/ARBI.P/141/2022 ORDER DATED: 11/11/2022

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agreed procedure as contemplated under Clause 8 above referred to, it is held petitioner would be at liberty to file a petition afresh under section 11(6) of the Arbitration and Conciliation Act, 1996.

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Subject to aforesaid observation, all these petitions stand DISMISSED .

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(ARAVIND KUMAR,CJ)

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AMAR SINGH

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Page 4 of 4

Evolutionary Systems Private Limited v. Abhishek Tulsyan

Case brief

What is this about?

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Evolutionary Systems Private Limited v. Abhishek Tulsyan

Case brief

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