1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. MISC. CIVIL APPLICATION (ARBITRATION) No. 938/2010. M/s. V.M. Kotpalliwar, through its Partner -VERSUS- M/s. Bharat Petroleum Corporation Ltd. _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI, J. DATED : 17.06.2011. Heard Shri A.S. Jaiswal, learned Counsel for the Applicant and Shri S. Sambre, learned Counsel for respondent/non-applicant. The matter needs to be viewed in the light of the earlier orders of this Court dated 13.08.2010 in Misc. Civil Application [Arbitration] No. 235/2010. Those proceedings were disposed of upon a statement of non-applicant, that the application for reference of dispute to Arbitrator shall be referred to the Arbitrator 2 within a period of 30 days from the date of order. Shri Jaiswal, learned counsel for applicant contends that no Arbitrator was appointed within a period of 30 days from 13.08.2010 and the appointment has been on 23.09.2010 i.e. date on which the present proceedings under Section 11, came to be filed. Shri Sambre, learned Counsel for non- applicant on the other hand states that after 13.08.2010, a communication was addressed to Shri S. Radhakrishnan on 25.08.2010, which he received on 30.08.2010. Shri S. Radhakrishnan then wrote back on 06.09.2010 and demanded copies of agreement to enable him to take further action. According to Shri Sambre, learned Counsel thus appointment of Arbitrator has been made within 30 days from 13.08.2010. In the alternative and without prejudice, he further states that a communication was also sent to Shri S.Radhakrishnan on 13.09.2010 along with copy of Bulk Petroleum Products Road Transport Agreement dated 07.08.2003 between the parties and after receipt 3 thereof, on 23.09.2010 Shri Radhakrishnan expressing difficulties and pointing out his inability, appointed Shri A.K. Kaushik, General Manager, as Arbitrator. He therefore, states that this exercise of powers by Shri Radhakrishnan which is also in accordance with the agreement also shows that Shri S. Radhakrishnan was also appointed as an Arbitrator. Communication dated 23.09.2010 reveals that Shri Radhakrishnan in that communication has for the first time disclosed to parties his pre-occupation and therefore, inability to personally adjudicate the dispute. It is to be noted that in communication sent to Shri Radhakrishnan on 13.09.2010, the non- applicant have requested him to appoint an Arbitrator for the subject matter. If on 25.08.2010 Shri Radhakrishnan was already appointed as Arbitrator, there was no reason for such request to be made on 13.09.2010. The communication dated 13.09.2010 is after last date as contemplated in the order dated 13.08.2010 passed by this Court. Not only this, on the date on which Radhakrishnan accepted that request, or then appointed Arbitrator, is not apparent except for 4 the communication dated 23.09.2010. I am, therefore, unable to hold that appointment of Arbitrator has been done within 30 days, as agreed before this Court. The non-applicant therefore, lost its right to appoint the Arbitrator. In view of this, Shri Sambre, learned counsel for non-applicant is seeking adjournment to enable him to obtain further instructions. He also sought time to find out the suitable Arbitrator to be appointed, in the alternative. Considering the fact that the matter has been heard today, the request is rejected. Shri D.B. Yengal, Advocate (Nagpur) whose name appears in the list of Arbitrator prepared by the Registry of this Court is, appointed as Arbitrator to conduct the proceedings. The applicant to deposit an amount of Rs. 5000/- with the registry of this Court within a period of four weeks, towards processing charges. In view of above, Misc. Civil Application is disposed of . JUDGE Rgd