Malek Tarafdar & Anr vs Shamimur Rahaman Chowdhury

The Court : This is an application under Section 11(6) of the Arbitration and Conciliation Act, 1996, as amended by the Act 3 of 2016 (in short

“The Act of 1996â€) for appointment of an arbitrator to adjudicate the disputes between the parties relating to the agreement for sale dated

October 17, 2015, which also contains an arbitration clause.

The petitioner had moved this application upon service of the same on the respondent which is evident from the affidavit of service filed by the

petitioner. On an earlier occasion, that is, on December 18, 2017 this application was dismissed for default. However, subsequently, on February 02,

2018, the order of dismissal was recalled and the application was restored to its original file and number.

From the affidavits of service filed on behalf of the petitioner today, it appears that as directed by this Court on February 02, 2018, the said order

sought to be communicated to the respondent by speed post as well as by way of personal service.

From the track report issued by the Postal Department it is not clear whether the respondent has received the copy of the order dated February 02,

2018 but when a copy of the said order was sought to be served upon him on behalf of the petitioners, the respondent refused to accept the same.

Let, the affidavits of service filed today on behalf of the petitioners be kept on record.In the present case, since the respondent has refused to accept

a copy of the order dated February 02, 2018, it shall be deemed to be a valid service of the said order on him and as such, this Court takes up this

application for hearing even in the absence of the respondent.

As recorded above, a copy of this application had already been served upon the respondent and even on December 18, 2017 he remained

unrepresented before this Court. There is nothing on record that the respondent disputes the existence of the arbitral agreement between the parties

contained in Clause 11 of the agreement for sale dated October 17, 2015, a copy whereof has been disclosed as Annexure -A to the application.

In view of the provisions contained in sub-section (6A) of Section 11 of the Act of 1996 when there is no dispute with regard to the existence of the

arbitral agreement between the parties, this application succeeds. Accordingly, Mr. Partha Pratim Roy, Advocate (Bar Association, Room No. 11) is

appointed as the sole arbitrator to adjudicate the disputes between the parties relating to the agreement for sale dated October 17, 2015.

The learned arbitrator shall be free to fix his remuneration, which is to be shared by the parties equally. He shall also be entitled to appoint necessary

staff for the purpose of conducting the arbitral reference.The petitioner shall communicate this order to the respondent by speed post with

acknowledgement due card as well as by personal service.With the above directions, AP No. 824 of 2017 stands disposed of. There shall however be

no order as to costs.