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2003 DIGILAW 390 (JK)

Shamsher Singh v. State Of J. &K.

2003-12-09

Y.P.NARGOTRA

body2003
The petitioner has filed this application under Section 11 of the J&K Arbitration & Conciliation Act, 2001, praying therein that respondents be directed to file original agreement in this Court and matter be referred to the Arbitrator for adjudication of the dispute arising between the parties and the Arbitrator be also appointed. 2. Objection to the maintainability of the petition has been taken by the respondents in their objections that the petition is not maintainable as the provision contained in Sub-section 5 of Section 11 of the Act has not been complied with. The execution of the agreement, which contained the arbitration clause, however, has not been denied. 3. I have heard learned counsel for the parties. Admittedly, in clause 32 of the agreement executed between the parties, Chief Conservator of Forests, Jammu and Kashmir Government, has been nominated as an Arbitrator for determination/adjudication upon the disputes, difference or question arising between the parties. It is also not disputed that the petitioner, before moving the application, has not lodged any request upon the respondents for referring the disputes and appointed the arbitrator named in the agreement. Sub-section 5 of Section 11 reads as follows: "5. Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made upon request of a party, by the Chief Justice of the High Court or any person or institution designated by him." 4. Under the scheme of the new Act, the intervention of the Court or the Chief Justice or any person or institution designated by him, can be sought,when the party upon whom the other party has made a request for appointment of the arbitrator fails to agree to such appointment within the statutory period of thirty days. In the present case, as no such request was ever made upon the respondents, therefore, the application under section 11, filed by the petitioner, is not maintainable, 5. Mrs. Surinder Kour, learned counsel for the petitioner has however, argued that since the respondents have taken notice of the application filed in this Court for seeking appointment of the Arbitrator and, therefore, no fresh request as contemplated under Sub-section 5 of Section 11, is necessary. Mrs. Surinder Kour, learned counsel for the petitioner has however, argued that since the respondents have taken notice of the application filed in this Court for seeking appointment of the Arbitrator and, therefore, no fresh request as contemplated under Sub-section 5 of Section 11, is necessary. To support her contention, she relies upon two cases, AIR 1988 SC 2054 and 2000 Supreme today 657. Both these cases are distinguishable and do not in any manner apply to the question involved in the present case. Therefore, there is no force in the contention of the learned counsel for the petitioner. The application of the petitioner is not maintinable because of non-compliance of sub-section 5 of Section 11 of the Act and, therefore, this petition is dismissed. The dismissal of the petition, however, shall not in any manner, come in the way of the petitioner for making a request in terms of Sub-section 5 of Section 11 of the Act, upon the respondents.