1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR M. C. A. (ARBITRATION) NO. 809 & 810 OF 2009 Jayati w/o Avinash Vasudeo Vs. Shakuntaladevi wd/o Vishwanath Choudhary & Ors. ------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ------------------------------------------------------------------------------------- Mr. A. M. Ghare Adv for petitioner. Mr. J. P. Pendsey Adv for respondents 1, 3 & 4. Mr. Masood Shareef Adv for respondent 5. Mr. M. I. Mourya Adv for respondent 2. CORAM: C. L. PANGARKAR J. DATED: 11 th DECEMBER, 2009. This application has been filed under Section 11 of the Arbitration and Conciliation Act by one Jayati Vasudeo. There was a memorandum of understanding between one Vishwanath Choudhari on one part and Jayati and Pravin on the other part. Memorandum of understanding relates to development. The agreement stipulated that if any 2 dispute arises between the parties to the agreement the same dispute shall be referred to the Arbitrator. A dispute arose between the parties. 2. Thereafter an application under Section 11 being M. C. A. No. 1033 of 2008 came to be filed before this Court. In the said application Pravin and Jayati were petitioners. While heirs of Vishwanath Choudhari, who was party No.1 were the respondents. 3. The said petition came up for hearing before the Court on 24.03.2009. On 24.03.2009 this Court passed an order that the Court was inclined to appoint an Arbitrator to resolve the dispute between applicant No.1 and the respondents only, since applicant No.2 had not issued any notice seeking appointment of an Arbitrator. The parties were directed to suggest the name of the Arbitrator. 4. Thereafter the said application once again came up before the Court on 07.05.2009. On that date the Court appointed Shri Justice W. M. Sambre (Retired) of this Court as an Arbitrator. The order 3 dated 07.05.2009 further shows that applicant No. 2 was allowed to withdraw the application and was permitted to file second application but subject to the question of tenability of second application before the Court. 5. The present applicant has now instituted these proceedings after serving a notice on the respondents 1 to 4 and has sought an appointment of the Arbitrator. 6. It is not in dispute that the Arbitrator has been appointed upon the application filed by Pravin i.e. Respondent No.5 in this case and Pravin and the present applicant were applicants No. 1 and 2 in the original application. 7. Shri Pendsey learned counsel for the respondents submits that the present applicant has lost her right to seek an appointment of Arbitrator by virtue of the order passed by this Court on 24.03.2009. He submits that the Court has found that it was the applicant No.1 in that application who was entitled to appointment of an arbitrator and the Court had 4 declined to make an appointment of Arbitrator as far as present applicant Jayati is concerned who was applicant No.2 in that application. 8. The order dated 24.03.2009 does show that the appointment was made only upon application of applicant No.1 and there was refusal to make an appointment as far as applicant No.2 in that proceeding is concerned, only on the ground that there was no notice. 9. I find that the application under Section 11 has not been decided by Court on merits. Court finds that because there was no notice on behalf of applicant No.2 the applicant No.2 did not have a cause to come to the Court and institute proceedings under Section 11. The Court has not refused to appoint an arbitrator for any other reason. Since the Court observed that because no notice was given no appointment would be made without that, the Court cannot shut the doors to the party to approach the Court after giving such a notice as is required under the statute and also under the agreement. The notice 5 has now been given by the present petitioner and present petitioner after such notice is certainly entitled to appointment of arbitrator. One thing that must be borne in mind is that, in fact Jayati and Pravin were party No.2 in the agreement i. e. two persons constituted party no.2. Jayati and Pravin were not separate parties to the agreement but were joint party. Therefore when a notice was given on behalf of Pravin, that could be said to be a notice also on behalf of Jayati because agreement is joint and such an agreement cannot be split and in view of this I find that present application has also to be allowed. In fact even the Arbitrator may not be able to decide as to what damages Pravin is entitled to separately the contract being joint. What is required to be decided by the Arbitrator is breach of the arbitration and damages suffered by them. Those damages could not be split since Jayati and Pravin are common party, being party No.2 to the agreement and in view of this I allow the application and direct the parties to suggest the name of the Arbitrator. Since both parties 6 submit that this Court had already appointed Shri Justice P. G. Palshikar (Retired) as Arbitrator in Misc. Civil Application Nos. 1033 and 1038 of 2008 and since the dispute is common, in these proceedings also, Shri Justice P. G. Palshikar (Retired) be appointed as Arbitrator. 10. Shri Justice P. G. Palshikar (Retired) is accordingly appointed as an Arbitrator. JUDGE svk