IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO. 47 OF 2009 M/s Hira Films Pvt. Ltd. ).. Applicants Versus M/s Sri Mappillai Vinayagar Cine Complex ).. Respondents Mr. Snehal Shah i/b Purnanad & Co. for the Applicants. None present for the Respondents. CORAM : J.N. PATEL, ACTING C.J. DATED : 8TH JANUARY 2010 P.C. None present for the Respondents in spite of being served. Heard the learned Counsel appearing for the Applicants. 2. The Applicants have filed this Application for seeking appointment of an Arbitrator as per the Conducting Agreement dated 30th January 2007. It is the case of the Applicants that in their capacity as Conductor they had agreed for operating, running and conducting the theatre business and carrying out income earning activities of two cinema theatres known as “Sri Mappillai Vinayagar Theatre” and “Sri Manikka Vinayagar Theatre” both situated in Madurai. It was followed by a Supplemental Agreement dated 2nd April 2007 where some of the terms of the said Conducting Agreement dated 30th January 2007 were modified. 3. It is the case of the Applicants that on 1st April 2007 they have opened separate bank account for the Respondents to deposit all the revenue from the said theatres into the said account and all the expenses were required to be paid from that account in terms of the Conducting Agreement. By letter dated 2nd July 2007, the Respondents were informed that instead of depositing the entire amount, they have partly deposited gross revenue and also misused the said account. In response to which, the Respondents replied by their letter dated 18th July 2007 and apologized for not following the terms of the Conducting Agreement and issued cheques to make up for the deficiencies. On 1st August 2008 the said cheques came to be dishonoured with the remark “Funds Insufficient” and, therefore, the Applicants instituted proceedings under Section 138 read with Section 141 of the Negotiable Instruments Act by filing complaint before the Court of competent jurisdiction. By a letter dated 9th January 2009, the Applicants through their Advocate called upon the Respondents to pay amount which has already became due and payable and hand over the complete management of the threatres. The Respondents did not reply to the said communication and, therefore, Clause 43 of the Conducting Agreement was invoked for appointment of Arbitrator. Clause 43 of the said Conducting Agreement reads as under :- “43. In case of any disputes or differences between the parties hereto under these presents or interpretation of any of the terms and conditions the same shall be referred to the Arbitration of sole Arbitrator if mutually agreed between the parties hereto failing which to the panel of three Arbitrators of which one Arbitrator will be appointed by each of the parties and two Arbitrators will appoint the third Arbitrator. The Arbitration shall be in accordance with the provisions of Arbitration and Conciliation Act, 1996 and place of Arbitrator shall be at Mumbai and will be subject to the jurisdiction of the Court at Mumbai.” 4. The Applicants further informed the Respondents that they have appointed Mr.Mukesh Ratilal Mehta as Arbitrator on their behalf. The said communication was sent by Registered Post A.D. at the address of the Respondents, but inspite of that the Respondents failed to appoint the Arbitrator on their behalf and, therefore, seek appointment of an Arbitrator on behalf of the Respondents to enable the two Arbitrators – one nominated by the Applicants as well as by this Court, to appoint an Umpire so that the dispute could be resolved. 5. The Applicants have placed on record the correspondence and the notice dated 19th February 2009 whereby the Respondents were called upon to comply with Clause 43 of the Conducting Agreement along with the Postal acknowledgment which show that the said notice was served on the Respondents on 28th February 2009. 6. The Respondents, in spite of being served, have not appeared and contested the matter. Therefore, I proceed to appoint Smt. Justice K.K. Baam, former Judge of this Court, as an Arbitrator on behalf of the Respondents. 7. Application disposed of accordingly. No order as to costs. ACTING CHIEF JUSTICE