M/s National Commodities Management Services Limited vs M/s Maa Jagdamba Udyog And Others

Sujit Narayan Prasad, J

The instant application has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 whereby and whereunder, prayer has been made to appoint independent Arbitrator for adjudication of the dispute between the petitioner and the respondent arising out of the Milling Agreement dated 31.12.2015 which contains an arbitration clause as under Clause 19 thereof.

Mr. Rohit, learned counsel for the respondents has made serious objection about the maintainability of the instant application on the ground of pendency of the proceeding before the J.M.F.S.C. Council being J.M.F.S.C. No. 13 of 2021 wherein the petitioner/applicant has put his appearance. He submits that before the Council, the petitioner/applicant has put his appearance and is contesting the case, as such, during pendency of the said application, the instant application is not maintainable.

Mr. Vikas Pandey, learned counsel for the petitioner has submitted with all fairness that he has questioned the very initiation of the proceeding by the Council by filing a writ petition before this Court being W.P.(C) No. 700 of 2022.

Mr. Pandey, however, submits that the writ petition has been filed on the ground that the conciliation proceeding could not have been conducted and straightway the jurisdiction of the Council has been approached by filing such application under Section 17 of the Micro, Small and Medium Enterprises Development Act, 2006. He, in addition to that, submits that otherwise also, before the Council the counter-claim cannot be adjudicated.

This Court, having heard the learned counsel for the parties and considering the fact that the parties are pursuing the litigation before the Council and the petitioner/applicant being aggrieved with the initiation of the proceeding has approached before this Court by filing writ petition being W.P.(C) No. 700 of 2022, is of the view that at this stage, the instant application is not maintainable, reason being that since the parties have already approached the forum and during its pendency if this application will be entertained by appointing sole arbitrator, there is likelihood of conflicting post adjudication decision by both the forums.

This Court, taking into consideration the aforesaid fact, is of the view that the instant application is not maintainable at this stage, accordingly, this application is held to be not maintainable and stands dismissed.

However, the petitioner/applicant is at liberty to invoke the jurisdiction conferred to this Court under Section 11(6) of the Arbitration and Conciliation Act, 1996 depending upon the outcome of the writ petition being W.P.(C) No. 700 of 2022.

In view thereof, the instant arbitration application stands disposed of