Delhi High Court Indian Potash Limited vs Bohra Industries Ltd. on 7 January, 2011 Judgment reserved on: 07.12.2010 % Judgment delivered on: 07.01.2011 + Arb.P.24/2010 & I.A.13666/2010 INDIAN POTASH LIMITED ..... Petitioner Through: Mr. Vivek Singh, Advocate versus BOHRA INDUSTRIES LTD. ..... Respondent Through: Mr. Guru Krishna Kumar, Mr.Pancham Surana and Ms.Pooja Priyadarshini, Advocates. HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? : No 2. To be referred to Reporter or not? : Yes 3. Whether the judgment should be reported in the Digest? : Yes JUDGMENT VIPIN SANGHI, J. 1. This petition has been preferred under Section 11 of the Arbitration and Conciliation Act, 1996 (for short `the Act) to seek the appointment of an independent and impartial arbitrator to adjudicate the disputes and differences which have arisen between the parties under, and in relation to, the Memorandum of Understanding (MOU) Arb. P. No.24/2010 Page 1 of 20 executed between them on 10.09.2008. I may note that the existence of the said MOU; the arbitration agreement contained therein; the factum of existence of live disputes between the parties, is not in question. The matter has, however, been argued at considerable length, primarily on the issue whether the petitioner had the locus standi to file this petition under Section 11 of the Act (as the notice invoking the arbitration agreement dated 31.12.2009 was sent by the respondent and not the petitioner) and on the issue that this petition was filed prematurely. 2. I consider it appropriate to first note the submissions of the respondent. The submission of learned counsel for the respondent, firstly is that it is only that party, who invokes the arbitration agreement by serving a notice on the opposite party, who is entitled to file a petition under Section 11 of the Act. The recipient of the notice cannot do so, by relying upon the notice of invocation of the arbitration agreement issued by the opposite party. The second submission is that the period of 30 days (from the date of issuance of the notice of invocation of arbitration agreement) had not expired when the present petition was filed. It is urged that this petition was premature when filed. Even if the petitioner did not agree to the name of the proposed arbitrator as suggested by the respondent, the petitioner ought to have made a suggestion of its own, to which the respondent might Arb. P. No.24/2010 Page 2 of 20 have agreed. The petitioner, according to the respondent, could not have prematurely approached this Court by filing the present petition. 3. Another submission of learned counsel for the respondent is that the petitioner has not filed the original arbitration agreement between the parties, and for this reason also this petition is not maintainable. 4. The respondent also disputes the territorial jurisdiction of this Court to entertain the present petition on the ground that no part of cause of action has arisen within the jurisdiction of this Court, and that the respondent is also not situated within the jurisdiction of this Court. In this regard, reliance has been placed by learned counsel for the respondent on Larsen & Toubro Ltd. v. K.S. Baidwan & Ors., 2005 (3) R.A.J. 103 (Del). A preliminary objection to the territorial jurisdiction of this court to entertain a petition under Section 34 of the Act was raised by the respondent. This was a case where the agreement of the parties, inter alia, specifically provided: all payments by the employer shall be made only at Ghaziabad; all disputes arising out of or in any way connected with the agreement, shall be deemed to have arisen at Ghaziabad, and; only courts at Ghaziabad shall have jurisdiction to determine the same. 5. On the other hand, learned counsel for the petitioner has rebutted all the aforesaid submissions of the respondent. As I am inclined to accept the submissions made by learned counsel for the Arb. P. No.24/2010 Page 3 of 20 petitioner, I am not recording them separately, and shall refer