1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD ARBITRATION APPLICATION NO.6 OF 2010 Mangesh Dinkarrao Salunkhe .. Applicant Versus Shirish Suryakant Shirsathe ..Respondent Shri B.S.Deshmukh, Advocate for applicant Shri K.C.Sant, Advocate for respondent CORAM : P.V. HARDAS, J. DATE : 3rd February 2011 PER COURT This is an application filed by under the provisions of the Arbitration Act seeking the appointment of an Arbitrator for resolving the dispute between the applicant and the respondent. 2. It appears that the applicant and the respondent are partners in a partnership firm. On account of dispute between the parties, the applicant invoked the arbitration clause i.e. Clause No.11 in the partnership agreement. Clause No.11 of the said agreement reads thus: “11. That in case of any dispute the dispute shall be settled by Arbitration as per the provisions of the Indian Arbitration Act, 1940.” Mr Sant, learned Counsel for the respondent does not dispute the present position that the arbitration would now be governed as per the provisions of the new Act. 2 3. A notice calling upon the respondent to appoint an Arbitrator had also been issued and since no Arbitrator is appointed, the present applicant has filed this application. 4. On notice of this application being issued to the respondent, the respondent has filed its affidavit-in-reply. In the affidavit-in-reply several objections are raised. The first objection is that the clause relating to reference to the Arbitrator is not a mandatory clause and, therefore, it is not binding on the parties to have their dispute settled by an Arbitrator. For this purpose reliance is placed by Mr Sant on the judgment of Supreme Court in Wellington Associates Limited Versus Kirit Mehta, 2000 (4) SCC 272. The Supreme Court in the aforesaid judgment has held that where it was mentioned that the parties may go to the Court and may get the matter to be decided from the arbitrator, the aforesaid clause would not be an arbitration agreement. In the present matter, Clause 11 of the agreement in no uncertain terms states that the dispute between the parties shall be decided by the Arbitrator appointed under the Arbitration Act. 5. Mr Sant has further urged before me that the applicant did not appoint an Arbitrator nor did suggest the name of an Arbitrator and at one point of time had suggested that the dispute can be resolved by the parties. It is, therefore, urged before me by Mr Sant, learned Counsel for the respondent that the applicant was never serious in seeking the appointment of an Arbitrator. The aforesaid objection also, according to me, is without merit. The documents filed by the applicant clearly indicate that the applicant is keen to have the dispute resolved by the Arbitrator and accordingly a notice had been issued calling upon the respondent to appoint the Arbitrator. 3 6. The applicant has proposed the names of the Arbitrators while the respondent has also proposed the name of the Arbitrators. Upon examining the names proposed by the applicant and the respondent, I appoint Mr Sadashiv Rajaram Pawar, 91, 1st Floor, Phule Market, Navi Peth, Jalgaon as an Arbitrator in the present dispute. The parties shall settle the terms and the fees of the Arbitrator to be borne equally by the parties. Application allowed as indicated above. ( P.V. HARDAS, J.) (vvr/6.2010aarbappln)