1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Misc. Civil Application No. 40 of 2011 [Arbitration] [Smt. Pravesh Ashok Agrawal & others Vs. Rachana Construction Co., & anothers] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. A.G. Gharote, Adv., for the applicants. Mr. H.D. Dangre, Adv., for respondent no.1. ----- CORAM : B.P. DHARMADHIKARI, J. DATE : 26th August, 2011. 1. Heard Shri Gharote, learned counsel for the applicant and Shri Dangre, learned counsel for non-applicant No. 1. 2. This is an application under Section 11(6) of Arbitration and Conciliation Act, 1996, [hereinafter referred to as the Arbitration Act] for taking necessary measures for commencement and completion of arbitration proceedings. The existence of arbitration clause or arbitral dispute is not in dispute. Said clause contemplates arbitration through two named Arbitrators out of whom one is an Architect and other is an Advocate. The 2 Arbitration proceedings are to be completed within six months in line with provisions of Arbitration Act. Thus named persons are non- applicants No. 2 & 3 before this Court. They have chosen not to appear though served with notice. 3. In this background, by placing reliance upon the provisions of Section 11(6) and Section 14, in the judgment of the Hon'ble Apex Court in the case of N.B.C.C. Ltd. vs. J.G. Engineering Pvt. Ltd., reported at AIR 2010 SC 640, Shri Gharote, learned counsel contends that as facts demonstrate that non- applicant No. 2 has refused to function as Arbitrator and period of six months has already expired, the power under Section 11 of the Arbitration Act, is available to this Court and the Arbitrator needs to be appointed. 4. Shri Dangre, learned counsel, states that until and unless Principal District Judge has approached under Section 14 and there is declaration of the termination of mandate of Arbitrator, recourse to Section 11 is not permissible. He contends that Section 11(6) needs to be understood in the background of its sub-section (2) and cannot be looked into independently. 5. In reply, Shri Gharote, learned counsel has relied upon the judgment of the Hon'ble Apex Court in the case of Union of India vs. Singh Builders Syndicate, reported at 3 2009 (4) SCC 523, particularly para 7 thereof. 6. However, during arguments, Shri Dangre pointed out that alleged notice dated 4th July, 2010 has not been served upon respondent no.1 at all. Because of this statement, for verification, the matter was adjourned on 12th August, 2011 to today. 7. Today, Adv. Shri Gharote is relying upon reply filed before this Court by respondent no.1, particularly paragraph 17 thereof, to show that issuance of letter invoking arbitration clause is not in dispute. Shri Dangre has pointed out that said reply in para 17 is with reference to paragraph 1 (a) and after perusal, I am satisfied that the paragraph nowhere contains an assertion that such notice was either sent to respondent no.1, or it was then received by him, with the result, there is no acceptance of receipt of any such notice by respondent no.1 on record. 8. Shri Gharote has contended that the Statement of Claim filed before Arbitrators on 5th July, 2010 is admittedly received by respondent no.1. He, therefore, states that in this situation notice under Section 11 (6) must be deemed to be waived. In the alternative and without prejudice, it is contended that as both the Arbitrators are named in the agreement, there is no requirement of issuing any such notice. 4 9. Shri Dangre is relying upon provisions of Section 21 of the Arbitration & Conciliation Act, to urge that such inference is not legally permissible. 10. Except for rival contentions, no other assistance is received by this Court, so as to resolve this issue. Therefore, the issue is kept open for consideration in appropriate circumstances. 11. In this situation, it has become clear that notice required by Section 11 (6) has not been served. I find application is filed premature. Application is, therefore, disposed of. No costs. Judge |Hedau|