NON-REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1794  OF 2009 (Arising out of SLP(C) NO. 10902 of 2008)

M/s Kailash Store                                                      ……..  Appellant

Versus

Union of India                                                            ……..Respondent

O R D E R

Leave granted.

2) The appellant  calls  in  question  the  correctness  or  otherwise  of  the

judgment and order passed by the High Court of Delhi in Arbitration

Case No. AA No. 339 of 2007 dated 28th day of February, 2008.  By

the impugned  judgment,  the  court  while  allowing  the  petition,  has

directed  Divisional  Commercial  Manager  of  Railways to  appoint  a

person as Arbitrator within thirty days from the date of order and has

further directed that the Arbitrator so appointed shall visit the site in

presence of both the parties and shall physically verify if there was

occupation  of  any  part  of  the  parking  site  by  old  and  unclaimed

vehicles,  at  the time of  auction of the parking site.   The court  has

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further observed, that, no other dispute is referred to the Arbitrator

except the dispute regarding 20% less area allegedly handed over to

the appellant/applicant.  

3) The  appellant  asserts  that,  the  court  has  erred  in  adjudicating  the

dispute raised by the applicant/appellant, while allowing the petition

under Section 11(6) of  Arbitration and Conciliation Act, 1996, here

in after for the sake of brevity and clarity referred to as `Act 1996’,

without  referring  all  the  points  of  disputes  to  the  Arbitrator  for

adjudication.  It is further submitted, that, the court while exercising

its powers under Section 11(6) of the Act, ought not to have directed

the respondent to appoint a fresh Arbitrator, when the respondent had

failed and neglected to appoint an Arbitrator, despite the fact that the

appellant  had  invoked  the  arbitration  clause  in  the  agreement  and

instead should have appointed a qualified Arbitrator to adjudicate the

dispute between the parties.  Lastly, it is stated that, the court ought

not to have restricted the point of dispute to a particular issue instead

of leaving open to the applicant to get all the dispute raised by him in

the petition to be adjudicated before the Arbitrator.  However, at the

time of hearing of the appeal, the learned counsel for the appellant

submits,  that  instead  of  deciding  all  the  legal  issues  raised  in  the

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appeal,  this  court  may appoint  one  Shri  D.R.  Bhatia,  former Joint

Registrar  of Delhi  High Court as the sole Arbitrator and direct the

Arbitrator to resolve all the disputes between the parties as envisaged

under the agreement.

4) The  learned  counsel  for  the  respondent  has  no  objection  to  the

suggestion made by the learned counsel for the appellant.  

5) In view of the above, without going into the legal issues raised by the

appellant, as agreed between the parties, we appoint Shri D.R. Bhatia

as the sole Arbitrator to decide all the disputes raised by the appellant

in the petition filed under Section 11 of the Act as expeditiously as

possible and, at any rate, within a outer limit of six months from the

date of receipt of copy of this court’s order after issuing notice to both

the parties.  The Arbitrator’s fee is fixed at Rs. 50,000/- (Rupees Fifty

Thousand only) as agreed by the appellant.

6) The appeal is disposed of accordingly.  

                                                                                     …………………………………J.                                                                                        [ TARUN CHATTERJEE ]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, March 23, 2009.

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