IAAP/11/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD PETN. UNDER ARBITRATION ACT No. 11 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= YUNUS Y SHEIKH - Petitioner(s) Versus AHMEDABAD GYMKHANA CLUB - Respondent(s) ========================================================= Appearance : MR CHETAN K PANDYA for Petitioner(s) : 1, MR SANJAY A MEHTA for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 26/12/2008 ORAL JUDGMENT 1. Heard Mr.Chetan Pandya, learned Advocate for the petitioner and Mr.Sanjay Mehta, learned Advocate for the respondent for final hearing. 2. Present application has been filed by the IAAP/11/2008 2/6 JUDGMENT petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 ('the Act' for short) requesting to appoint Retd. High Court Judge as sole arbitrator for resolution of the dispute between the petitioner and the respondent. 3. It is the case on behalf of the petitioner that he is permanent member of respondent – Ahmedabad Gymkhana Club having membership No.S-163. That the petitioner received letter from the respondent club asking him to give written apology with assurance not to repeat the alleged act of 27.05.2007, failing which disciplinary action will be taken by the Managing Committee. That the petitioner replied to the letter 18.06.2007 by his reply dated 29.06.2007 and denied the allegation of unbecoming behaviour of the petitioner. It is the case on behalf of the petitioner that though petitioner vide his reply dated 29.06.2007 informed that he shall be proceeding to foreign country on business tour on 14.07.2007 and likely to return after four to six months. By communication dated 08.10.2007, the petitioner was informed that the Managing Committee has taken a decision in its meeting dated 27.09.2007 to terminate the petitioner's membership with immediate effect. It is the case on behalf of the petitioner that thereafter the petitioner issued notice dated 18.12.2007 calling upon certain documents from the respondent-Club. It is the case on behalf of the petitioner that since there are genuine dispute with respect to termination of IAAP/11/2008 3/6 JUDGMENT permanent membership, he invoked Clause No.53(b) of the Bye laws of Ahmedabad Gymkhana Club and requested the respondent to appoint sole arbitrator – Retd. High Court Judge to arbitrate the dispute of terminating petitioner's permanent membership of Ahmedabad Gymkhana Club as the termination of petitioner's membership from the respondent club shall damage his reputation and prestige. Therefore, by notice dated 09.01.2008 the petitioner invoked arbitration clause and requested to appoint arbitrator. It is the case on behalf of the petitioner that said notice has been received by the respondent Club on 11.01.2008. It is submitted that inspite of the fact that there are genuine and bona fide disputes has arisen between the petitioner and the respondent with regard to termination of the petitioner's membership and inspite of arbitration clause 53(b) of the Bye-laws of Ahmedabad Gymkhana Club to resolve dispute by the Arbitrator – Retd. High Court Judge, respondent – Club is not agreeable for arbitration for appointment of sole arbitrator. Hence, the petitioner has preferred present application under Section 11 of the Act. 4. Mr.Chetan Pandya, learned Advocate for the petitioner has submitted that there are genuine and bona fide dispute between the petitioner and the respondent-Club with regard to termination of petitioner's membership from Ahmedabad Gymkhana Club and bye-laws of Ahmedabad Gymkhana Club provides arbitration clause that in case of dispute between IAAP/11/2008 4/6 JUDGMENT the club and the member or members shall be referred to arbitration of a Retd. High Court Judge . Therefore, it is requested to appoint Retd. High Court Judge as sole arbitrator to resolve the dispute between the petitioner and the respondent. 5. Application is opposed by Mr.Sanjay Metha, learned Advocate for the respondent -Club. It is submitted that dispute between the member and the Club only is to be referred to the Arbitration. It is submitted that once the petitioner's membership is already terminated, the petitioner cannot be said to be member and therefore, now the dispute is not required to be referred to Retd. High Court Judge. It is also further submitted by him that even otherwise, if there is dispute between the member and the Club with respect to bills and other disputes, same is required to be referred to Arbitrator. Therefore, it is requested to dismiss the present application. 6. Heard the learned Advocates for the respective parties. 7. It is not in dispute that the petitioner was permanent member of respondent – Ahmedabad Gymkhana Club having membership No.S-163. There seems to be some dispute and show cause notice was issued and thereafter, his membership has been terminated. That there is dispute with respect to termination of petitioner's membership between the petitioner and the respondent-Club. There are bye-laws of the IAAP/11/2008 5/6 JUDGMENT respondent – club and as per Clause 53(b) all dispute between the Club and the member or members shall be referred to the arbitration of a Retd. High Court Judge whose decision on the subject shall be final. Under the circumstances when there is dispute between the petitioner and the respondent – Club with respect to termination of membership of the petitioner as member, bye-law 53(b) would be attracted and even such dispute is required to be referred to the Arbitrator – Retd. High Court Judge. The contention on behalf of the respondent – Club that as membership of the petitioner is already terminated, the petitioner cannot be said to be member of the respondent – club, therefore aforesaid dispute is not required to be referred to Arbitrator, cannot be accepted. All the dispute between the Club and the member is required to be referred to Arbitrator – Retd. High Court Judge. Under the circumstances, dispute between the petitioner and the respondent – Club with respect to termination of the membership of the petitioner is required to be referred to the Retd. High Court Judge as per clause 53(b). At this stage, this Court called upon the learned Advocate appearing for the respective parties to suggest agreed name of Retd. High Court Judge to resolve the dispute between the petitioner and respondent – Club with respect to termination of the membership of the petitioner. The learned Advocates appearing on behalf of the respective parties, have suggested the name of Justice M.S.Parekh (Retd.) to be Arbitrator. IAAP/11/2008 6/6 JUDGMENT 8. Under the circumstances, present Application is allowed and dispute between the petitioner and the respondent – Club with respect to termination of the membership of the petitioner as member of the respondent – Club is hereby referred to sole Arbitrator and Justice M.S.Parekh (Retd.) is appointed as sole Arbitrator for resolution of the dispute between the petitioner and the respondent referred herein above. No order as to costs. [M.R.Shah,J.] satish