M/S Neer Developer And Ors vs Asish Ganguly And Ors

Ashis Kumar Chakraborty, J

The Court : In this application under Section 11(6) of the Arbitration and Conciliation Act, 1996, the petitioner has approached this Court for appointment of an Arbitrator to adjudicate the disputes between the parties herein relating to the development agreement dated July 2, 1999(hereinafter referred to as "the said development agreement").

Article XI of the said development agreement contemplated that all disputes and differences between the parties thereto shall be referred to arbitration.

A copy of the application was forwarded to the respondents at their respective address mentioned in the said development agreement but none of them could be found. Accordingly, this Court directed the petitioner to publish a notice of this application once, in English newspaper and once, in a Hindi newspaper. The petitioners have published notices of this application once in a Bengali daily, namely "Anandabazar Patrika" and once in a English daily, namely "The Times of India". The affidavit filed by the petitioner brought before this Court is taken on record. However, the respondents remain unrepresented.

It is the case of the petitioners that by a notice dated September 5, 2018 they informed the respondents of their claim for Rs.1,88,70,000/- against the said respondents and invoked the arbitration clause. The petitioners also nominated their present Advocate-on-record as the sole Arbitrator to adjudicate the disputes between the parties.

As mentioned earlier, the respondents remained unrepresented. Considering the records of the case, particularly, the letter dated October 16, 2015, being Annexure 'U' to the petition it appears that way back in October, 2015 the petitioners raised their money claim of Rs.1,88,70,000/- against the respondents. Even after expiry of three years therefrom the petitioners have not initiated any legal proceeding against the respondents for recovery of the said alleged money claim raised in the year 2015. Therefore, there is little to doubt that the claim of the petition in the instant case is hopelessly barred by limitation.

Be that as it may, since the respondents are not contesting the application the petitioner's present application should be allowed.

Accordingly, Mr. Amitabha Ghosh, Advocate of Bar Library Club, is appointed as the sole Arbitrator to adjudicate the disputes between the parties.

The Arbitrator shall be paid his fees of Rs.20,000/-(Rupees Twenty Thousand Only) per sitting.

The Arbitrator will be free to engage the secretarial staff to conduct the arbitral proceeding.

The fees of the learned Arbitrator and the remuneration of the secretarial staff shall be borne by the parties in equal share.

Before parting with the matter the Arbitrator shall first decide if the petitioners' claim against the respondents is barred by limitation or not.

With the above direction, the application, A.P. No. 192 of 2019 stands disposed of.