IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT th ON THE 24 OF APRIL, 2024 ARBITRATION CASE No. 55 of 2022 BETWEEN:-

M/S BIRLA CORPORATION LIMITED A COMPANY EXISTING UNDER THE PROVISIONS OF THE COMPANY ACT 2013 THROUGH ITS POWER OF ATTORNEY HOLDER SHRI SUDHIL KUMAR TIWARI S/O S.P. TIWARI HAVING ITS REGISTERED OFFICE AT BIRLA BUILDING, 9/1, RN MUKHARJEE ROAD, KOLKATA AND HAVING ITS CORPORATE OFFICE AT A.C. MARKET (2ND FLOOR), KOLKATA AND UNIT SATNA CEMENT WORK SATNA DISTRICT SATNA (M.P.) BIRLA COLONY SATNA M.P. (MADHYA PRADESH)

.....APPLICANT (BY SHRI ATUL CHOUDHARI - ADVOCATE)

AND PHIL COAL BENEFICATION PVT. LTD. THROUGH HEAD OFFICE 3RD FLOOR, MAHIMA TRADE CENTER, HANSA VIHAR, SHRIKANT VERMA MARG BILASPUR (C.G.)

(CHHATTISGARH) .....RESPONDENT (BY SHRI ISHAN SONI - ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

Applicant has filed an application under Section 11(6) of the Arbitration and Conciliation Act, 1996.

2. Learned counsel appearing for applicant submitted that applicant/company has placed order for supply of 9 racks of domestic coal having quantity of 36,000 metric ton to the respondent. Original copies were in Signature Not Verified possession of respondent and second copies available with him. Purchase order was issued from corporate office at Kolkata but respondent failed to deliver the coal in terms of purchase order till 10.05.2022. From their conduct, respondent had abandoned the contract.

3. Respondent/company vide E-mail dated 28.01.2022 offered for revision of coal rates as coal prices have gone high and they were not in position to supply pending racks in terms of agreed rates as per purchase order. Applicant sent notice of innovation of arbitration clause and nominated Arbitrator as per terms and conditions of arbitration agreement dated 10.05.2022. Respondent denied the averments and requested the applicant to appoint Arbitrator of his choice. 4. Heard counsel for the parties.

5. As per purchase order dated 01.07.2021, there is an arbitration agreement between the parties in clause 16. In case of dispute, same shall be referred to the sole Arbitrator to be appointed by the company and decision and award of sole Arbitrator being final. It is also mentioned in the clause that respondent shall not make any objection for appointment of Arbitrator even if such Arbitrator is employee of company. Venue and place of arbitration is to be decided by Arbitrator.

6. On going through the pleadings and arguments made by counsel for the parties, it is clear that both agree for appointment of Arbitrator but who is to be appointed Arbitrator is under dispute. Both the parties have not agreed to name of common Arbitrator.

7. Respondent can oppose appointment of sole Arbitrator if said Arbitrator is in relationship with the petitioner as mentioned in Schedule Seven of Section 12(5) of Arbitration and Conciliation Act, 1996. Respondent has not Signature Not Verified made any averment that Arbitrator appointed by petitioner is in relationship which bars appointment of such person as Arbitrator. Merely bald allegation is not sufficient to oppose appointment of sole Arbitrator. There is an arbitration agreement between the parties for appointment of sole Arbitrator by applicant.

8. In view of same, objection of respondent is only formal in nature and, therefore, same is rejected.

9. Arbitration case filed by the applicant is disposed off with following directions :-

(i) Arbitration case is referred to Madhya Pradesh Arbitration Centre (Domestic and International), Jabalpur (M.P.D.I.S.E.).

(ii) Shri S.N. Khare, Retd. District & Sessions Judge R/o: Q-55, Jasuja City, Phase-III, Behind Jasuja Tower, Dhanvantri Nagar, Jabalpur (M.P.) 482003, e-mail address-snkhare754@gmail.com is appointed as Arbitrator to resolve the dispute between the parties. Said arbitration will take place at Madhya Pradesh Arbitration Centre (Domestic and International) Jabalpur.

(iii) D