1 arbap147-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION APPLICATION NO.147 OF 2009 Soni Tourism Pvt. Ltd. & Ors. ....Applicants V/s. Hotel Sai Siddhi Pvt. Ltd. & Anr. ....Respondents Mr.K.H. Halai i/b M/s.Halai & Co. for the Applicants. None for the Respondents. CORAM : S.J. VAZIFDAR, J. DATE : 23RD SEPTEMBER, 2010. P.C. :- 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996. 2. It is not possible to refer the disputes to a sole arbitrator as the arbitration clause provides for a tribunal of three arbitrators. Further one of the named arbitrator could not continue to act as such. 3. Applicant No.2 is not a party to the agreement between the parties. This order will therefore, not apply to Applicant No.2. The reference to the Applicants in this judgment will therefore not included Applicant No. 2. 4. The Applicants and the Respondents entered into an agreement dated 3.6.2004 under which the Applicants were to transfer a property jointly owned by them to Respondent No.1. Respondent No.2 is a director and therefore, not a necessary and proper party. The reference to the Respondent/Respondents in this judgment is therefore limited to 2 arbap147-09 Respondent No.1. Clause 1 of the agreement also provides that the Applicants would transfer the shares to the Respondents. Although the Applicants cannot transfer the shares per-se, it is fairly conceded that the only shareholders of the Applicants are Rajan Soni and Sunil Soni. The consideration for transfer of the property is Rs.3,50,00,000/- payable in the manner stated therein. 5. The entire consideration not having paid, the Applicants invoked the arbitration clause which reads as under :- “21. In the event of any difference of opinion or dispute between the Parties or any matter pertaining to this agreement and the aforesaid transfer, it shall be referred to arbitration by and arbitrator. Advocate Mr.Ashokan & Advocate Pradeep Bhutada hereby appointed as a arbitrator by both the parties, such arbitration shall be governed in accordance with provisions of the Arbitration and Conciliation Act, 1996.” Advocate Ashokan has refused to act as an arbitrator. There is nothing to indicate that the parties did not intend filling the vacancy of the named arbitrator. Ultimately in these circumstances, the parties intended filling such vacancy. Both the named arbitrators are advocates. There is no special connection between them and the parties or between them qua the agreement that warrants an inference to the contrary. 6. In the circumstances, Mr.Shailesh Shah, an advocate of this Court is appointed as an arbitrator in place of said Mr.Ashokan. The arbitrators shall agree to the appointment of a presiding arbitrator, failing which the Applicants are at liberty to adopt appropriate proceedings in accordance with law. 7. The arbitration application is accordingly disposed of.