advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, September 24, 2015

Whether the application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as “the Act”) seeking appointment of a Sole Arbitrator in terms of clause 22.3 of the Supply Contract between the parties which was entered is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS Under Section 15(2) of the Act in a situation where the mandate of an arbitrator terminates, a substitute arbitrator is required to be appointed according to the rules that were applicable to the appointment of the arbitrator who is replaced. Clause 22.3 of the Supply Contract contemplates appointment of a sole arbitrator by the parties by mutual consent. In a situation where the original arbitrator i.e. Shri Justice S.K. Dubey had recused himself the substitute or new arbitrator is required to be appointed according to the rules that were applicable to the appointment of the original arbitrator. This is the mandate of Section 15(2) of the Act. It was, therefore, incumbent on the petitioner to give notice and explore the possibility of naming an arbitrator by mutual consent and only on failure thereof the present application under Section 11(6) of the Act could/should have been filed. The above recourse is required to be followed by virtue of the provisions of Section 15(2) of the Act and the decision of this Court in Yashwith Constructions (P) Ltd. (supra). Admittedly, the same had not been followed. In these circumstances, the Court will understand the present application/arbitration petition to be premature. It is accordingly not entertained leaving it open for the petitioner to act appropriately, if so advised, in terms of the present order and thereafter seek its remedies as provided by law. The Arbitration Petition is disposed of in the above terms. 2015 SC MSKLAWREPORTS

 Whether the application under Section  11(6)  of  the  Arbitration  and
Conciliation Act, 1996 (hereinafter referred  to  as  “the  Act”)  seeking appointment of a Sole Arbitrator in terms of  clause  22.3  of the Supply Contract between the  parties  which  was  entered  is maintainable without following the procedure of giving notice and without naming the arbitrator by mutual consent when the sole arbitrator recused himself ? - No , the application is a premature one.- 2015 MSKLAWREPORTS
         
Under Section 15(2) of the Act in a situation where the  mandate
of an arbitrator terminates, a  substitute  arbitrator  is  required  to  be
appointed according to the rules that were applicable to the appointment  of
the arbitrator who is replaced.

Clause 22.3 of the Supply Contract contemplates  appointment  of
a sole arbitrator by the parties by mutual consent.
In  a  situation  where
the original arbitrator i.e. Shri Justice S.K.  Dubey  had  recused  himself
the substitute or new arbitrator is required to be  appointed  according  to
the  rules  that  were  applicable  to  the  appointment  of  the   original
arbitrator.
This is the mandate of Section  15(2)  of  the  Act.
It  was,
therefore, incumbent on the  petitioner  to  give  notice  and  explore  the
possibility of naming an arbitrator by mutual consent and  only  on  failure
thereof the present application under Section 11(6) of the Act  could/should
have been filed.
 The above recourse is required to be  followed  by  virtue
of the provisions of Section 15(2) of the  Act  and  the  decision  of  this
Court in Yashwith Constructions (P) Ltd. (supra).
 Admittedly, the same  had
not been followed.  In these circumstances, the Court  will  understand  the
present  application/arbitration  petition   to   be   premature.  
 It   is
accordingly not entertained leaving  it  open  for  the  petitioner  to  act
appropriately, if so advised, in terms of the present order  and  thereafter
seek its remedies as provided by law.

     The Arbitration Petition is disposed of in the above terms. 2015 SC MSKLAWREPORTS

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.