1 arbap215-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ABRITRATION APPLICATION NO.215 OF 2007 Nova Express Service Pvt. Ltd. ....Applicant V/s. Patel Integrated Logistics Ltd. ....Respondent Mr.Zal Andhyarujina i/b M/s.Malvi Ranchoddas & Co. for the Applicant. Ms.Shilpa Kapil for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 22ND JULY, 2010. P.C. :- 1. This is an application under section 11 of the Arbitration and Conciliation Act, 1996. There is no dispute that an agreement dated 21.12.2001 was entered into between the parties and the same contains an arbitration clause which reads as under :- “20. Arbitration : If any dispute shall arise between the parties hereto concerning the construction interpretation or application of any of the provisions of this Agreement whether during the continuance of this Agreement or after the termination there by whatever cause such dispute shall be resolved in accordance with the Arbitration and Conciliation Act, 1996 and shall be referred to the arbitration of a sole arbitrator to be appointed by the Company provided always that this Clause shall have no application to terms of this Agreement concerning restrictions against competition and non-disclosure, and the parties hereto agree to be bound by the terms of such arbitration and to bear the costs of such arbitration in equal shares. The place of Arbitration shall be in Mumbai and the arbitration shall be conducted in the English language.” 2 arbap215-07 2. The above agreement was extended from time to time. The last extension being dated 6.1.2003 for the period of three years. The arbitration was invoked by the Applicant by its letter dated 29.3.2007. 3. The first contention is that the arbitration agreement was not invoked as per its terms and is therefore liable to be dismissed. Even assuming that an application is liable to be dismissed merely because the purported appointment of an Arbitrator is not in accordance with the terms of the agreement, in the present case it is not so. The letter invoking the arbitration clause expressly stated that “the disputes shall be resolved by arbitration of a single Arbitrator to be selected by you” (i.e. the Respondent). This is as provided in the arbitration clause. Thereafter the Applicant merely suggested the names of the two Arbitrators. The Applicant further stated that if the Respondent did not agree to the appointment of either Arbitrator suggested by it, then it appoints the first person named by it as its Arbitrator and requested the Respondent to appoint another Arbitrator and stated that the two Arbitrators shall appoint the Presiding Arbitrator. It was however stated that if the Applicant did not hear anything from the Respondent in this regard, it would take it that the Respondent had no objection to one of the Arbitrators being appointed as a sole Arbitrator. What is important is that the Applicant expressly stated that the Respondent shall be entitled to select the Arbitrator. Thus the invocation was not contrary to the arbitration clause. What was written thereafter were only suggestions. The contention that the invocation is contrary to the 3 arbap215-07 Arbitration’s appointment is therefore rejected. 4. Even assuming that the question of limitation does arise, in the facts and circumstances of this case, it is desirable that the question be decided by the Arbitrator. 5. The Respondent by a letter dated 30.4.2007 inter-alia stated that the Applicant’s invocation of arbitration was illegal. The Respondent therefore expressly declined the Applicant’s request for appointment of an Arbitration but stated that the prerogative lies with it to appoint the sole Arbitrator. The Respondent called upon the Applicant to follow the procedure under Section 11 of the Arbitration and Conciliation Act, 1996 which the Applicant has in fact now done by filing this application. 6. The Respondent has therefore forfeited its right to appoint the Arbitrator. I however, requested the learned counsel appearing on behalf of the Applicant to suggest the name of an Arbitrator and I have accepted the name suggested by the Applicant. 7. In the circumstances, the arbitration application is made absolute in terms of prayers (a) to (c). Mr.Justice H. Suresh (Retd.) is appointed as the sole Arbitrator. It is clarified that all the counter claims and set off shall also be referred to arbitration.