TMI Blog2014 (1) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... manded vide notice dated 04.02.2013, ordinarily there would be no need for issuance of second notice dated 07.05.2013, though such a conduct by itself cannot lead to any definitive conclusion either, especially in the circumstances that there was a gap of at least three (3) months between the two notices - Therefore, the appointment by the respondent, of a sole arbitrator vide communication dated 07.06.2013, would be of no relevance as, the petitioner had moved this court much after the expiry of the thirty (30) days from the date of receipt of the first notice dated 04.02.2013 by the respondent. What made the respondent’s case worse was the fact that the appointment of an arbitrator was sought to be made post the date of institution of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which communication/ notice. For this purpose, the following broad facts need to be noticed:- 3.1 There is no dispute that the parties had entered into a contract dated 24.12.2008. An addendum was also executed in that behalf on 02.03.2009. The aforesaid would be hereinafter referred to as the agreement. 3.2 Broadly, in terms of the agreement, obtaining between the parties, the petitioner was to offer Nova Net PC and Utility Computing Services bundled with its broad band services to the respondent. It appears that, disputes have arisen between the parties pertaining to the services purportedly rendered by the petitioner. The petitioner claims that it is entitled to an amount of Rs.5,04,42,842/- towards subsidy under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent, was received by its Chennai office after the institution of the present petition, though prior to the hearing held on 05.07.2013. It was averred that this fact was somehow not within the knowledge of its employees at the Gurgaon office, which was responsible for the institution of the present petition. SUBMISSIONS OF COUNSELS 4. Ms. Sinha, who appears for the respondent opposes the prayer made in the main petition, on the ground that, the same has been rendered infructuous. It is Ms. Sinha s contention that in the first notice i.e., notice dated 04.02.2013, there was no demand made by the petitioner for appointment of an arbitrator. She says that in so far as the second notice is concerned, i.e., notice dated 07.05.2013, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. 5.2 Towards this end and for the sake of convenience, clause 5.7 of the agreement obtaining between the parties, is extracted herein below :- ..Except as provided in this agreement, in case of any dispute or differences, breach or violation relating to the terms of the Agreement. The said matter or dispute, difference shall be referred to sole arbitration of Chairman and Managing Director (CMD) of BSNL or any other person appointed by him. In the event of such Arbitrator to whom the matter is originally referred to is being transferred or vacates his office on resignation or otherwise or refuses to do work or neglecting his work or being unable to act as Arbitrator for any reasons whatsoever, the CMD BSNL shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 04.02.2013, alongwith the arbitration clause referred to above, leaves no doubt in mind that the arbitration agreement was triggered by the petitioner. To explain this away, Ms Sinha had sought to contendthat if arbitration had been demanded by notice dated 04.02.2013 then, where was the need for the petitioner to send a second notice dated 07.05.2013. In other words, the submission was that because no demand for arbitration was made earlier, the petitioner felt the need to issue a second notice i.e., notice dated 07.05.2013. 5.5 To my mind, Ms Sinha would be right that if arbitration had been demanded vide notice dated 04.02.2013, ordinarily there would be no need for issuance of second notice dated 07.05.2013, though such a condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch after the expiry of the thirty (30) days from the date of receipt of the first notice dated 04.02.2013 by the respondent. What made the respondent s case worse was the fact that the appointment of an arbitrator was sought to be made post the date of institution of the present petition. The petitioner is thus entitled to relief not only under Section 11(4) and 11(5) but also under Section 11(6) of the Act. (See Datar Switchgears Ltd. Vs. Tata Finance Ltd. Anr. (2000) 8 SCC 151.) 6. Accordingly, the petition is allowed. Hon ble Mr. Justice R.V. Raveendran, a former Judge of the Supreme Court (Contact No.080-26601279), is appointed as an arbitrator. As a logical corollary, the mandate of Mr. R.N. Bhardwaj, who was appointed as an arbit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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