Case Law Details
Malvika Rajnikant Mehta Vs JESS Construction (Bombay High Court)
Facts- The applicants executed a deed of conveyance in favour of the respondent. The Conveyance Deed provided for a mechanism for resolution of dispute between the parties through arbitration to be presided over by Mr. Kirti K. Shah, an Architect, as the sole Arbitrator.
Asserting that the respondent failed to perform its part of the contract, the petitioners claimed to have invoked the arbitration by lodging a statement of claim with the named Arbitrator Mr. Kirti K. Shah, on 8th June, 2018. The respondent took a stand that the Arbitrator was ineligible for being appointed as an Arbitrator in the light of the provisions contained in Section 12(5) read with Seventh Schedule of the Act, 1996. Subsequently, the respondent filed an application before the arbitral Tribunal calling upon the sole Arbitrator Mr. Kirti K. Shah to recuse himself, alleging that on account of the continual professional and familial relationship between the said Arbitrator and Mr. Ramakant Rajnikant Mehta, the arbitrator had incurred disqualification. Vide communication dated 2nd November, 2018 Mr. Kirti K. Shah recused himself from the arbitration.
After various communications, the applicant approached the High Court under Section 11(5) for the appointment of the arbitrator.
Conclusion- Indisputably, there was a lengthy exchange of correspondence between the applicants and respondent with a view to appoint an Arbitrator. Suggestions were met by counter suggestions. The applicant and respondent could not agree on an Arbitrator, despite multiple efforts. This may not by itself furnish a justifiable ground to dispense with the invocation of arbitration under Section 21 of the Act, 1996. However, there is a peculiar fact which alters the very complexion of the controversy.
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