Allowed

Mr. Rajesh Choudhary S/O Shri Gopal Choudhary, v. Miss Parmila Choudhary D/O Shri Om Prakash Choudhary

Rajasthan HC23 Aug 2024ARBAP/116/2023

Case brief

AI extract

What is this about?

The High Court allowed a reference under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of a sole arbitrator. The court relied on the Supreme Court judgment regarding Section 11(6A) which preserves its applicability post-2019 amendment, and appointed Mr. Arif Mohammed Madani to adjudicate the partnership dispute.

What did the court decide?

Appointment of Hon'ble Mr. Arif Mohammed Madani, Retired District Judge, as sole Arbitrator. Parties directed to appear before Arbitrator on 14/09/2024.

Mr. Rajesh Choudhary S/O Shri Gopal Choudhary, Vs Miss Parmila… — Arbitration | Rajasthan HC (2024)

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[2024:RJ-JP:35691]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Arbitration Application No. 116/2023

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Mr. Rajesh Choudhary S/o Shri Gopal Choudhary, Aged About 34 Years, R/o-44 Ladu Ki Dhani, Kalyanpura, Saganer, Jaipur, Rajasthan.

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----Petitioner

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Versus

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Miss Parmila Choudhary D/o Shri Om Prakash Choudhary, Aged About 36 Years, R/o-8 Sumer Nagar Vistar, Golyawas, Jaipur, Rajasthan.

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----Respondent

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For Petitioner(s) : Mr. Munesh Bhardwaj For Respondent(s) : Mr. Sumit Kumar Soni

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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23/08/2024

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This arbitration application under Section 11 of the Arbitration and Conciliation Act, 1996 has been filed by the applicant for appointment of sole Arbitrator in view of clause 21 contained in the deed of partnership dated 17.11.2022 which reads as under:-

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“That all disputed and questions in business connection with the partnership or this deed arising between the partners or between anyone them or partners or between anyone them or their legal representatives and whether during or after partnership, shall be referred to the arbitrator in accordance with the provisions of the arbitration and Conciliation Act, 1996 then in force.”

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Heard counsel for both the parties and perused the record.

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It is not in dispute that a deed of partnership dated 17.11.2022 was executed between the parties and a business relating to food grains items and milk products was commenced in the name and style of M/s Ayufresh Agronomics in terms of deed of partnership. However, later on, dispute has erupted between

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the parties, since according to the applicant, the respondent has siphon off the amount of partnership firm for his personal benefit whereas according to respondent, applicant took loan in the name of partnership firm but transferred it for his personal benefit.

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Be that as it may, a dispute has erupted between the partners and an arbitration agreement exists between the partners to adjudicate such disputes, therefore, this Court finds that an Arbitrator is required to be appointed to adjudicate such dispute between the parties. 5. A seven judges’ Bench of the Hon’ble Supreme Court in recent judgment dated 13^th December 2023, delivered In Re: Interplay Between Arbitration Agreements Under The Arbitration and Conciliation Act 1996 And the Indian Stamp Act, 1989 [AIR 2024 SC 1] , has observed in Para Nos.152 & 154 that the omission of Section 11(6A), through Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019), has not been notified in the official gazette and therefore, the said provision continues to remain in full force. In this judgment, placing reliance on previous judgments of the Apex Court delivered in cases of Duro Felguera, S.A. Vs. Gangavaram Port Limited [(2017) 9 SCC 129] and Mayavati Trading Private Limited Vs. Pradyuat Deb Burman [(2019 8 SCC 714] , it has been held that the legislature confined the scope of reference under Section 11(6A) to the examination of existence of an arbitration agreement. It has been held that the referral Court only need to consider one aspect to determine the existence of an arbitration agreement- whether underlying contract contains

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arbitration agreement which provides for arbitration pertaining to the dispute which has arisen between parties to the agreement. Thus, this Court has to relied upon the provision of Section 11(6A), which reads as under:-

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“(6A) 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 or order of any Court, confine to the examination of the existence of an arbitration agreement.”

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It may be noted that Section 11(6A) was added by the Legislature by introducing the Arbitration and Conciliation (Amendment) Act, 2015 (Act 3 of 2016), and there was an impression that the provision of Section 11(6A) has been omitted vide Arbitration and Conciliation (Amendment) Act, 2019 (Act 33 of the 2019), but the present prevailing position about such proposition of law, has been clarified by the seven judges’ Bench of the Apex Court in the above referred judgment recently delivered on 13^th December 2023.

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Accordingly, the present application is allowed and this Court appoints Hon’ble Mr. Arif Mohammed Madani, Retired District Judge, Address:- 302, 3^rd Floor, Felicity Tower, Near Mahanagar Times, Main Sahkar Marg, Jaipur, Rajasthan, Mobile No.9414396746, E-mail ID:- [email protected] as sole Arbitrator, to adjudicate the dispute between parties in accordance with the provisions of the Act of 1996.

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The Arbitration fee shall be payable in accordance with the provisions of contained in the Manual of Procedure for Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure

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for Alternative Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with 4^th Schedule appended to the Act of 1996.

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The Registry is directed to intimate the Arbitrator Hon’ble Mr. Arif Mohammed Madani, for his approval.

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All other issues may be raised by the parties before the Arbitrator, which shall be considered in accordance with law. 10. Since as per Section 29A of the Arbitration Act, 1996, the arbitration proceedings are required to be concluded within scheduled time as stipulated therein, it is expected from the parties to appear before the Arbitrator on 14^th September 2024 or any other date as informed by the Arbitrator to parties or agreed between parties with the consent of Arbitrator, and parties shall provide E-mail/ Contact Number/ Mobile Number of themselves as also of their authorised representatives/ lawyers, appearing on their behalf respectively, before the Arbitration Tribunal, in order to facilitate the Arbitrator to send information to the parties, whenever required. The information send by the Arbitrator, on such address/ E-mail/ cellphone of the parties/ their authorized representatives/ lawyers, shall be treated as sufficient unless same is not changed.

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The Arbitration Application stands disposed of.

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(SUDESH BANSAL),J

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SOURAV /157

Mr. Rajesh Choudhary S/O Shri Gopal Choudhary, v. Miss Parmila Choudhary D/O Shri Om Prakash Choudhary

Case brief

What is this about?

What did the court decide?

Mr. Rajesh Choudhary S/O Shri Gopal Choudhary, v. Miss Parmila Choudhary D/O Shri Om Prakash Choudhary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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