AP No.493 of 2014 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE RASHMI METALIKS LTD.-VersusW.B.MINERALS DEVELOPMENT & TRADING CORPORATION LTD.& ANR.
Appearance: Mr.S.N.Mookherjee, Sr.Adv.Mr.Sabyasachi Chowdhury, Adv.Mr.Sarvapriya Mukherjee, Adv.Ms.Debjani Ghosh, Adv...for the petitioner.
Mr.R.S.De, Adv...for the respondent No.2.
BEFORE: The Hon'ble JUSTICE SANJIB BANERJEE Date : March 31, 2014.
The Court : The fiRs.respondent is not represented.
The second respondent is represented and does not question the existence of the arbitration clause in the agreement of February 5, 2008.
The fiRs.respondent had replied to the letter issued by the petitioner invoking the arbitration agreement.
In such response of the fiRs.respondent on March 3, 2014 to the petitioner’s invocation of the arbitration agreement by the letter dated January 16, 2014, the fiRs.respondent asserted that the disputes that were reflected from the letter of invocation did not pertain to the original agreement of February 5, 2008 but were relatable to a memorandum of understanding of March 1, 2011 which did not contain any arbitration clause.
The petitioner refers to an order of July 13, 2013 rendered in almost identical circumstances and says that a similar order should be passed.
In that previous case, the parent agreement had been executed between the petitioner in A.P.No.559 of 2013 with the same respondents as in the present case on February 4, 2008 and there were two memoranda of understanding executed thereafter on January 11, 2011 and March 1, 2011.
In the present case, the subsequent memorandum of understanding was executed on March 1, 2011.
The order passed on July 3, 2013 in A.P.No.559 of 2013 (Shyam Sel and Power Ltd versus W.B.Minerals Development and Trading Corporation LTD.noticed the objection by the respondent to the petition and directed the arbitrator to adjudicate upon such objection.
Since the letter of invocation seems to be in order and the vexed issue of whether the subsequent memorandum of understanding of March 1, 2011 is completely independent of the original agreement of February 5, 2005 may require oral evidence to be taken, such question can be more conveniently decided by the arbitrator.
The reasons indicated in the order pertaining to A.P.No.559 of 2013 are not repeated as they are accepted.
Accordingly, upon the failure of the respondent to adhere to the scheme under the arbitration agreement for securing the composition of the arbitral tribunal, Justice Prabir Kumar Samanta (Retd.).is nominated as the respondents’ nominee on the arbitral tribunal.
Since the petitioner’s nominee has already been indicated, the two nominees are left free to decide on the third arbitrator to complete the constitution of the arbitral tribunal.
The merits of the disputes between the parties have not been gone into and all points available to the parties in accordance with law may be urged before the arbitral tribunal, uninfluenced by any observation in this order.
The two nominees will be entitled to a consolidated remuneration of Rs.5 lakh each and the consolidated remuneration of the third arbitrator will be decided upon by the two nominees.
A.P.No.493 of 2014 is disposed of as above without any order as to costs.
Certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) A/s.