Arb. P. No134/2011 Page No.1 of 5 ..* HIGH COURT OF DELHI: NEW DELHI Judgment pronounced on: 09.08.2011 % Judgment pronounced on: 23.09.2011 + ARB. P. No.134/2011 SHRI KAILASH CHAND ..... Petitioner Through: Mr. Anil Kumar, Adv. Versus MOTHER DIARY FRUITS & VEGETABLES PVT. LTD. ..... Respondent Through: Mr. Sanjay K. Sharma, Adv. Coram: HON'BLE MR. JUSTICE MANMOHAN SINGH 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MANMOHAN SINGH, J. 1. The petitioner has filed the present petition under section 11 (6) of the Arbitration and Conciliation Act, 1996 read with Section 151 of CPC read with the scheme for appointment of the Arbitrator issued vide notification dated 29.01.1996 for seeking appointment of an independent arbitrator for settlement of disputes between the parties. 2. The brief facts of the care are that on 09.12.2009 the parties Arb. P. No134/2011 Page No.2 of 5 entered into an agreement with franchisee and the said agreement had a clause for referring any disputes to the regional arbitrator. It is stated in the petition that since 25.01.2010 the petitioner has been the retailer of the respondent for selling milk from the booth allotted by the respondent vide F.S. No.16737, Customer No.2005309 and the petitioner has been paying charges to the respondent through ECS as per the quantity of milk taken from the respondent. 3. It is averred in the petition that dispute arose between the parties when the respondent, without any prior intimation got withdrawn the double amount of a sum of Rs.24,008.50/- apart from the already taken amount of Rs.24008/- and even after the complaints made by the petitioner the dispute was not resolved and instead the respondent stopped supplying milk to the petitioner since 18.01.2011. 4. Therefore, the petitioner filed a suit for mandatory injunction against the respondent before the Court of Civil Judge, North-East, Delhi but, the same was disposed of vide order dated 25.02.2011 in view of the arbitration agreement between the parties. Thereafter, the petitioner filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the District Session Judge VII, North-East, Delhi but the same was also dismissed vide order dated 15.03.2011 by the court of Ld. A.D.J. Delhi. 5. According to the petitioner, the respondent failed to appoint the Arb. P. No134/2011 Page No.3 of 5 arbitrator and commence the arbitral proceedings, due to which the petitioner had to suffer huge losses. Therefore, the petitioner filed the present petition for appointment of the arbitrator. 6. The existence of the arbitration clause has not been denied by the parties. Before filing the present petition, the petitioner served the notice dated 24.03.2011 which was served upon the respondent requesting to appoint the sole arbitrator in order to adjudicate the dispute between the parties. According to the petitioner, since the respondent failed to appoint the arbitrator and commence the arbitration proceedings, therefore, the present petition was filed before this Court on 18.04.2011. 7. In reply to the petition, the respondent has annexed the reply to the legal notice dated 18.04.2011 informing the petitioner that since the post of nominated the arbitrator, i.e., Regional Director, National Dairy Development Board, has been abolished, therefore, in place of it, Managing Director of the company is the nominated arbitrator. As the same was not acceptable to the petitioner, therefore, the respondent appointed Sh. Sunil Dutt, Advocate, Chamber No.727, Western Wing, Tis Hazari Courts, Delh- 52, as the arbitrator to adjudicate the disputes, if any, between the parties. 8. I have heard the learned counsel for the parties. It is not in dispute that there is existence of agreement between the parties and clause 12 is of settlement of dispute. In the said clause 12, it is clearly mentioned that Arb. P. No134/2011 Page No.4 of 5 in case of any dispute between the parties, the Regional Director, National Dairy Development Board, New Delhi, would be appointed as the sole arbitrator. Admittedly, the respondent informed the petitioner that the said post has been abolished and in place of Regional Director, the respondent wanted to appoint Managing Director of the respondent company which was not acceptable to the petitioner. It is pertinent to mention here that the present petition was filed by the petitioner for appointment of an independent arbitrator on 18.04.2011 and the reply to the petition was filed on 02.08.2011 and along with reply, the respondent has annexed Annexure E, i.e., reply dated 18.04.2011 to the legal notice dated 24.03.2011 wherein the petitioner was informed that his client is agreeable to appoint Sh. Sunil Dutt, Advocate as the sole arbitrator. In fact, the impression given by the respondent is that on the date of petition, the respondent already appointed Sh. Sunil Dutt, Advocate as the sole arbitrator. However, it appears from the courier receipt that the said letter dated 18.04.2011 was dispatched to the petitioner’s advocate on 07.05.2011, i.e., definitely after filing of the petition before this Court. Therefore, I am of the view that it is appropriate under the said circumstances that in place of Sh. Sunil Dutt, Advocate, the sole arbitrator be appointed by this Court. 9. In view of the above said facts, the present petition is allowed. The disputes are referred to the arbitration, to be conducted under the aegis Arb. P. No134/2011 Page No.5 of 5 of Delhi High Court Arbitration Centre and its rules and the fee shall also be paid to the sole arbitrator as per rules thereof. Parties shall appear before the Delhi High Court Arbitration Centre on 30.09.2011. The Arbitrator appointed by the Delhi High Court Arbitration Centre shall give prior notice before commencing the proceedings. The petition stands disposed of. A copy of the order be sent to Delhi High Court Arbitration Centre. Dasti. MANMOHAN SINGH, J SEPTEMBER 23, 2011 jk