Debasis Kundu Vs. Bharat Sanchar Nigam Limited - Court Judgment

Excerpt:
this is a section 11 application. it arises out of an agreement, the date of which is quite hard to ascertain, annexed to the petition as `annexure b. the tender document is dated 20th march, 2008. the said agreement contains an arbitration clause being clause 10, which is reproduced below: 10. all disputes and differences arising out of or in any way touching or concerning this agreement shall be referred to arbitration of c.a.o. and if the c.a.o. is unable to or unwilling to act to the sole arbitration of some other person appointed by the c.a.o. willing to act as such arbitrator, it will be no objection to any such appointment that the arbitrator so appointed is a bsnl servant he has or had dealt with the matters to which this agreement relating or that in the course of his duties, as such bsnl servant he has expressed views on all or any of the matters in dispute or differences. the award of the arbitrator appointed shall be final binding upon both the parties to this agreement and the provisions of the indian arbitration act, 1940 or any statutory modification agreement hereof and the rules made thereunder from time to time shall to such arbitration and this deed shall be deemed to be submission of arbitration within the meaning of the said act. the advocate for the petitioner wrote a letter dated 15th january, 2010 to the chief accounts officer, bsnl, purulia raising disputes arising out of that agreement and asking for appointment of an arbitrator in terms of that clause. it is alleged that no such arbitrator has been appointed. when this application was before me on 24th june, 2010, i directed the respondent to file their affidavit-in-opposition. i also directed the petitioner to communicate such direction to the respondent as the respondent did not appear. i am satisfied with the letter of the petitioners advocate-on record addressed to the respondent dated 24th june, 2010 whereby such directions were duly communicated. despite this, no affidavit in- opposition has been filed. therefore, this application was directed by me to appear in the list as `motion (adjourned) (unopposed). i directed advocate-on-record for the petitioner to communicate this direction also to the respondent. that has also duly been done by a letter dated 21st july, 2010 which has been produced before me to show such compliance. none appears for the respondent even at the second call. in that view of the matter, the case of the petitioner is uncontroverted. in those circumstance, i direct the registry to place this application before the honble delegate of the honble the chief justice for the purpose of naming of an arbitrator. department and all parties concerned are to act on a signed photocopy of this order upon the usual undertakings.

Judgment:
This is a Section 11 application. It arises out of an agreement, the date of which is quite hard to ascertain, annexed to the petition as `Annexure B. The tender document is dated 20th March, 2008. The said agreement contains an arbitration clause being Clause 10, which is reproduced below:

10. All disputes and differences arising out of or in any way touching or concerning this agreement shall be referred to arbitration of C.A.O. And if the C.A.O. is unable to or unwilling to act to the sole arbitration of some other person appointed by the C.A.O. willing to act as such Arbitrator, it will be no objection to any such appointment that the arbitrator so appointed is a BSNL servant he has or had dealt with the matters to which this agreement relating or that in the course of his duties, as such BSNL servant he has expressed views on all or any of the matters in dispute or differences. The award of the arbitrator appointed shall be final binding upon both the parties to this agreement and the provisions of the Indian Arbitration Act, 1940 or any statutory modification agreement hereof and the rules made thereunder from time to time shall to such Arbitration and this deed shall be deemed to be submission of arbitration within the meaning of the said Act.

The Advocate for the petitioner wrote a letter dated 15th January, 2010 to the Chief Accounts Officer, BSNL, Purulia raising disputes arising out of that agreement and asking for appointment of an Arbitrator in terms of that clause. It is alleged that no such Arbitrator has been appointed.

When this application was before me on 24th June, 2010, I directed the respondent to file their affidavit-in-opposition. I also directed the petitioner to communicate such direction to the respondent as the respondent did not appear. I am satisfied with the letter of the petitioners Advocate-on record addressed to the respondent dated 24th June, 2010 whereby such directions were duly communicated.

Despite this, no affidavit in- opposition has been filed. Therefore, this application was directed by me to appear in the list as `Motion (Adjourned) (Unopposed). I directed Advocate-on-record for the petitioner to communicate this direction also to the respondent.

That has also duly been done by a letter dated 21st July, 2010 which has been produced before me to show such compliance. None appears for the respondent even at the second call. In that view of the matter, the case of the petitioner is uncontroverted. In those circumstance, I direct the Registry to place this application before the Honble Delegate of the Honble The Chief Justice for the purpose of naming of an Arbitrator.

Department and all parties concerned are to act on a signed photocopy of this order upon the usual undertakings.