- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. ARBITRATION APPLICATION NO.266 OF 2005 ... M/s.Chtrakala exports Pvt.Ltd. ...Applicant v/s. S.K.Yusufali M. Tayabali & ors. ...Respondents ... Mr.Vijay Pandey i/b Ashutosh Kanwar for the Applicant. None for the Respondents. ... CORAM: D.K.DESHMUKH, J. DATED: 19TH AUGUST, 2006 P.C.: This is an application filed under Section 11 of the - 2 - Arbitration & Conciliation Act. There is a memorandum of understanding entered into between the parties to the application. In this memorandum of understanding there is an arbitration clause, i.e. clause 30 of the agreement, which reads as under:- 30. If any dispute and/or difference arises between the parties hereto viz. the Vendor on the one part and the Purchaser on the other part, whether during the subsistence of this Agreement of thereafter, in connection or arising out of or touching anything contained in this Agreement including but not limited to the obligation (s) of the parties hereto or either of them or the validity or interpretation or implementation or alleged breach of any provision of this Agreement or regarding any question including the question as to whether the termination of this Agreement by any party is valid and/or legitimate then such dispute, difference or question, shall be referred to arbitration. Such arbitration shall be that of a sole arbitrator if the parties are agreeable to a sole arbitration filing which each party shall - 3 - appoint an arbitrator and the two arbitrators shall mutually agree upon and appoint a third arbitrator. Such arbitration shall be held in Mumbai and shall be conducted in the English language and shall be governed by the provisions of the Arbitration & Conciliation Act, 1996 or any statutory modification or reenactment thereof. The Courts in Mumbai only shall have exclusive jurisdiction to entertain any disputes whatsoever. 2. As disputes arose between the parties, the Applicants issued notice dated 30th April, 2005 to the Respondent. In that notice the Applicants stated that they suggests that Hon’ble Mr.Justice B.P. Saraf (Retd.) should be appointed as a sole arbitrator and in case the Respondent did not agree, then Justice Mr.Saraf (Retd.) should be treated as their represented on the arbitral tribunal In the Petition the Petitioner has averred that this notice has been delivered to the Respondent. This Petition has been served on the Respondent. Affidavit of service has been filed by the Applicant. Respondents are not appearing. They have not filed any reply. Therefore, accepting the averments in the application - 4 - at their face value, in the absence of their denial, now as Hon’ble Mr.Justice B.P.Saraf (Retd.) has been appointed as the nominee of the applicant on the arbitral tribunal, nominee of the Respondent will have to be nominated on the arbitral tribunal. 3. In this view of the matter, therefore, Hon’ble Justice Smt.P.D.Upasani (Retd.) is appointed as a nominee of the Respondent on the arbitral tribunal. Now, the two learned arbitrators shall appoint the third arbitrator in accordance with the provisions of Section 11 of the Arbitration Act. Application disposed of. ...