PNP 1 ARP32-28.1.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION ARBITRATION PETITION NO.32 OF 2009 Sarjan Realities Limited ..Petitioner. versus Narendra Pandav ..Respondent. ..... Mr. P.M. Arjunwadkar for the Petitioner. Mr. Jitendra Shukla i/b M/s. G.H. Shukla & Co. for the Respondent. ...... CORAM : DR.D.Y.CHANDRACHUD, J. 28 January 2011. P.C. : 1. This is a Petition under Section 11(6) of the Arbitration and Conciliation Act 1996. Under an agreement dated 14 June 2006 the Respondent was to assist the Petitioner in the acquisition of land for an industrial project. Clause 9 of the agreement contains an agreement to refer disputes to arbitration. The Petitioner handed over a cheque of Rs.8,49,510/- to the Respondent dated 26 June 2006. The agreement was terminated by the Petitioner on 17 January 2008 upon which the Petitioner addressed a notice of demand on 20 February 2008. The Petitioner invoked arbitration on 16 February 2009. 2. The Respondent has been served. Though an adjournment was sought by the Respondent to file a reply and which was granted on 14 January 2011, no reply has been filed. Counsel appearing on PNP 2 ARP32-28.1.sxw behalf of the Respondent has requested the Court to proceed on the basis of denials. The defence which was urged on behalf of the Respondent at the hearing is that under Clause 6.1(a) of the agreement, the Petitioner was required to pay the Respondent after the work was completed and since in the present case the amount is paid even prior to the performance of work by the Respondent, the payment was not made under the agreement but independent of it. Hence, it was urged that the dispute in regard to the claim for refund of the aforesaid amount does not fall within the purview of arbitration. 3. The submission which has been urged on behalf of the Respondent cannot be accepted. The execution of the agreement is not in dispute nor is the existence of the arbitration agreement The case of the Petitioner is that the amount was paid as an advance for the purpose of services under the agreement which is disputed by the Respondent. Disputes have arisen between the parties in regard to the nature of payment and the purpose for which it was made. This is evidently a dispute which is arbitrable and which falls within the purview of the arbitration agreement. The arbitration agreement has been validly invoked. 4. In these circumstances, this Court would have jurisdiction to entertain the request made to the designate of the Chief Justice under Section 11(6). Both the learned counsel state before the Court that in the interest of avoiding costs and delay, it would be appropriate if a sole arbitrator is appointed, instead of three as provided for in the arbitration agreement. In view of this statement PNP 3 ARP32-28.1.sxw made by learned counsel, the Petition is disposed of by appointing Shri Justice R.M. Bapat, Former Judge of this Court who shall act as sole arbitrator under the Arbitration and Conciliation Act of 1996. 5. On the request of Counsel appearing on behalf of the Respondent it is clarified that the Respondent would be at liberty to raise a counter claim, if any, to which the Petitioner, the Court is informed, has no objection. 6. All the rights and contentions of the parties are kept open to be urged before the arbitral tribunal. There shall be no order as to costs. The Registrar Judicial is directed to forthwith communicate a – copy of this order to the Learned Arbitrator together with a memorandum containing the address of the parties. (Dr. D.Y. Chandrachud, J.)