M/S Kailash Store Vs.
Union of India  INSC 590 (23 March 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1794 OF 2009 (Arising out
of SLP(C) NO. 10902 of 2008) M/s Kailash Store ........ Appellant Versus Union
of India ........Respondent
appellant calls in question the correctness or otherwise of the judgment and
order passed by the High Court of Delhi in Arbitration Case No. AA No. 339 of
2007 dated 28th day of February, 2008. By the impugned judgment, the court
while allowing the petition, has directed Divisional Commercial Manager of
Railways to appoint a person as Arbitrator within thirty days from the date of
order and has further directed that the Arbitrator so appointed shall visit the
site in presence of both the parties and shall physically verify if there was
occupation of any part of the parking site by old and unclaimed vehicles, at
the time of auction of the parking site. The court has 1 further observed,
that, no other dispute is referred to the Arbitrator except the dispute
regarding 20% less area allegedly handed over to the appellant/applicant.
appellant asserts that, the court has erred in adjudicating the dispute raised
by the applicant/appellant, while allowing the petition under Section 11(6) of Arbitration
and Conciliation Act, 1996, here in
after for the sake of brevity and clarity referred to as `Act 1996', without
referring all the points of disputes to the Arbitrator for adjudication. It is
further submitted, that, the court while exercising its powers under Section
11(6) of the Act, ought not to have directed the respondent to appoint a fresh
Arbitrator, when the respondent had failed and neglected to appoint an
Arbitrator, despite the fact that the appellant had invoked the arbitration
clause in the agreement and instead should have appointed a qualified
Arbitrator to adjudicate the dispute between the parties. Lastly, it is stated
that, the court ought not to have restricted the point of dispute to a particular
issue instead of leaving open to the applicant to get all the dispute raised by
him in the petition to be adjudicated before the Arbitrator. However, at the
time of hearing of the appeal, the learned counsel for the appellant submits,
that instead of deciding all the legal issues raised in the 2 appeal, this
court may appoint one Shri D.R. Bhatia, former Joint Registrar of Delhi High
Court as the sole Arbitrator and direct the Arbitrator to resolve all the
disputes between the parties as envisaged under the agreement.
learned counsel for the respondent has no objection to the suggestion made by
the learned counsel for the appellant.
view of the above, without going into the legal issues raised by the appellant,
as agreed between the parties, we appoint Shri D.R. Bhatia as the sole
Arbitrator to decide all the disputes raised by the appellant in the petition
filed under Section 11 of the Act as expeditiously as possible and, at any
rate, within a outer limit of six months from the date of receipt of copy of
this court's order after issuing notice to both the parties. The Arbitrator's
fee is fixed at Rs. 50,000/- (Rupees Fifty Thousand only) as agreed by the
appeal is disposed of accordingly.
[ TARUN CHATTERJEE ]
[ H.L. DATTU ]
Delhi, March 23, 2009.