Allowed

R.G. Colonizers Private Limited v. Sweets Buildhomes Projects

Rajasthan HC3 Feb 2023ARBAP/39/2021

Case brief

AI extract

What is this about?

In an arbitration application under Section 11(5) of the Arbitration and Conciliation Act, 1996, for appointing a sole arbitrator because the previously nominated arbitrator declined the case, the High Court allowed the application despite the nonappearance of the respondent, appointed a retired judge as the sole arbitrator, and directed that costs follow the rules in the Fourth Schedule.

What did the court decide?

Appointment of Hon'ble Mr. Justice Vijay Kumar Vyas (Retired Judge) as sole arbitrator to adjudicate the dispute and to direct payment of fees as per Fourth Schedule.

R.G. Colonizers Private Limited Vs Sweets Buildhomes Projects — Arbitration | Rajasthan HC (2023)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Arbitration Application No. 39/2021

¶3

R.g. Colonizers Private Limited, Having Its Registered Office At Tirupati Trade Centre, 4- Sansar Chandra Road, Jaipur, Through Its Authorized Signatory Mr. Mohammad Ali.

¶4

----Petitioner

¶5

Versus

¶6

Sweets Buildhomes Projects, Having Its Registered Office At 10Th Floor, Tower-9B, Dlf Cyberhub, Phase-Iii, Gurugram, 122002, Haryana And Regional Office At Elements Mall, Near Dcm Market, Ajmer Road, Jaipur-21 Through Its Authorised Signatory,

¶7

----Respondent

¶8

For Petitioner(s) : Mr.Prateek Kasliwal, Adv. with Ms.Gauri Jasana, Adv.

¶9

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

¶10

Order

¶11

03/02/2023

¶12

The instant arbitration application has been filed by the applicant under Section 11(5) of the Arbitration and Conciliation Act, 1996 (hereafter ‘the Act of 1996’) for appointment of sole Arbitrator.

¶13

This Court had issued notices in the arbitration application on 16.07.2021. The non-applicant was not served in spite of several notices issued by this Court and finally on 15.09.2022, permission was granted to serve the non-applicant by way of paper publication.

¶14

This Court on 01.11.2022, after considering the affidavit filed by the applicant in respect of service being effected on nonapplicant, treated service as complete.

¶15

(2 of 3)

¶16

[ARBAP-39/2021]

¶17

Learned counsel for the applicant submitted that the applicant and non-applicant had entered into a ‘Works Agreement’ dated 28.10.2015, whereby the applicant had to construct and develop complex (residential) flats and the scope of work agreement was given in Schedule-I to the agreement.

¶18

Learned counsel submitted that on account of certain dispute relating to payments to be made to the applicant, the nonapplicant did not take any action to pay the remaining dues as per terms and conditions of contract. The non applicant did not also comply with the terms and conditions, as agreed between the parties.

¶19

Learned counsel for the applicant submitted that since dispute has arisen in respect of the agreement between the parties and as such, the applicant as per Clause 37 relating to mechanism of arbitration, as per works agreement, approached the sole Arbitrator.

¶20

Learned counsel submitted that the sole Arbitrator by his letter dated 23.03.2021 informed the applicant that due to personal difficulties, the sole Arbitrator was not to adjudicate the dispute and as such he declined/rejected the proposal to be sole Arbitrator to resolve the dispute.

¶21

Learned counsel for the applicant submitted that this Court is now required to exercise its power under Section 11(5) of the Act of 1996, to appoint a sole Arbitrator, as the person, who was named as a sole Arbitrator, has failed to perform his function, as per Section 11(6)(c) of the Act of 1996.

¶22

This Court finds that in spite of service being effected on the non-applicant, he has not chosen to appear and as such, this

¶23

(3 of 3)

¶24

[ARBAP-39/2021]

¶25

Court is left with no other option except to exercise power under Section 11(5) of the Act of 1996 to appoint the sole Arbitrator.

¶26

This Court, accordingly, allows the present arbitration application filed by the applicant and while exercising the power conferred under Section 11 of the Act of 1996, appoints Hon’ble Mr. Justice Vijay Kumar Vyas (Retired Judge), F-48, 6-D, Engineers Colony Behind Swarn Garden, New Sanganer Road, Jaipur, as the sole Arbitrator to adjudicate the dispute between the parties. The payment of cost of arbitration proceedings and arbitration fee shall be made as per the 4^th Schedule appended to the Act of 1996.

¶27

The intimation of appointment, as aforesaid, may be given by the counsel for the parties as well as by the Registry to Hon’ble Mr. Justice Vijay Kumar Vyas (Retired Judge), F-48, 6-D, Engineers Colony Behind Swarn Garden, New Sanganer Road, Jaipur.

¶28

(ASHOK KUMAR GAUR), J

¶29

Monika/29

R.G. Colonizers Private Limited v. Sweets Buildhomes Projects

Case brief

What is this about?

What did the court decide?

R.G. Colonizers Private Limited v. Sweets Buildhomes Projects

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

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