1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 107 OF 2008 Jagjit Estates and Development Company ) Private Limited ).. Applicant Versus Sushma Virendra Pal Verma ).. Respondent Mr. Mukul Tally i/b S. Mahomedbhai & Co. for the Applicant. Mr. S. Purohit i/b Ms. S.K. Mistry for the Respondent. CORAM : J.N. PATEL, ACTING C.J. DATED : 15TH JANUARY 2010 P.C. Heard the learned Counsel appearing for the parties. 2. The Applicant has filed this Application seeking appointment of an Arbitrator as a dispute has arose between the parties relating to the transaction recorded in the Memorandum of Understanding executed between the parties on 18th December 2004. In the said Memorandum of Understanding, the parties have agreed to refer the disputes and differences touching the terms of the Memorandum of Understanding which can be found in Clause 20 of the said Memorandum of Understanding. Clause 20 reads as under :- 2 “20. In the event of any disputes and/or differences whatsoever nature arise between the parties touching the above terms of understanding or as to any other matter in any way relating to this understanding the same shall be referred to the arbitration of an Arbitrator to be appointed jointly with mutual consent by both the parties to this agreement in accordance with the provisions of the Arbitration and Conciliation Act of 1996, or any statutory modification thereof for the time being in force.” 3. It is the case of the Applicant that as there was a dispute between the parties relating to compliance with the terms and conditions of the Memorandum of Understanding, the Applicant through their Advocate invoked the arbitration clause vide letter dated 12th November 2007 addressed to the Respondent and appointed Shri K.D. Parikh, Advocate, as the Sole Arbitrator and called upon the Respondent to concur with the said appointment. The Respondent has failed and neglected to concur in the appointment of Shri K.D. Parikh as the Sole Arbitrator and, therefore, it is the case of the Applicant that the Respondent has forfeited her right to concur in the appointment of the Sole Arbitrator and that the Chief Justice should appoint an Arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996. 4. The learned Counsel appearing for the Respondent has challenged the validity of the Memorandum of Understanding executed between the parties and so also the right of the Applicant to invoke 3 Clause 20 of the said Memorandum of Understanding and, therefore, the Application deserves to be rejected. 5. In so far as the Memorandum of Understanding is concerned, it is not disputed that it is executed by the parties. It appears that due to differences between the parties, the Applicant was required to invoke Clause 20 of which notice was given to the Respondent. The Respondent has not filed any reply. Therefore, the matter will have to be referred to the Sole Arbitrator as agreed between the parties. 6. In so far as the appointment of Shri K.D. Parikh, Advocate of this Court as the Sole Arbitrator is concerned, there is again disagreement between the parties. Therefore, it will be appropriate if an independent Arbitrator is appointed. Accordingly, Shri S.R. Shah, former Judge of the City Civil Court, is appointed as the Sole Arbitrator to enter upon the Reference and proceed in accordance with law. 7. Arbitration Application disposed of accordingly. No order as to costs. ACTING CHIEF JUSTICE