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(2020)02ILR A1
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2020
BEFORE
THE HON'BLE JASPREET SINGH, J.
Arbitration Application No. 44 of 2019
Alongwith
Arbitration Application No. 45 of 2019
M/s Ultra Tech Cement Ltd. (UTCL)
...Applicant
Versus
UPRVUNL, Lucknow ...Opposite Party
Counsel for the Applicant:
Rajat Gangwar, Rahul Agarwal
Counsel for the Opposite Party:
Vibhanshu Srivastava, Suyash Manjul,
Vibhanshu Srivastava
A. Arbitration and Conciliation Act,
1996-Section 11(6)- challenge toappointment
of arbitrator-agreement
between the parties required the
respondent to provide fly ash free of
cost to the petitioner-negotiation
continued for some time-respondent
were charging for the fly ash from
others then why the charge should not
be levied from the petitioner upon the
objection raised by the audit teammeanwhile,
respondent issued a
tender seeking bids from third
parties-this triggered the disputeupon
request for appointing arbitrator
according to arbitration
clause,objection raised by the
respondent that agreement is not duly
stamped-the court considered the
agreement is akin to licence and is
duly stamped-petitioner proposed the
name of an Arbitrator, which was not
acceptable to the respondentarbitration
clause invoked by a notice
duly served on the respondent-since
the arbitration clause between the
parties is not disputed-the court has
ample jurisdiction to exercise its
power u/s 11(6) of the Act, to appoint
an Arbitrator.(Para 61 to 81)
The application is allowed. (E-6)
List of Cases Cited:-
1. Garware Wall Ropes Ltd. Vs. Coastal
Marine Constructions & Engineering
Ltd.,AIR (2019 )SC 2053
2. SMS Tea Estates (P) Ltd. Vs.
Chandmari Tea Company (P) Ltd. (2011)
14 SCC 66
3. Errington Vs. Errington & Woods Lord
Denning, (1952) 1 KB 290
4. Thomas Vs. Sorrell (1558-1774) All ER
Rep 107
5. Associated Hotels of India Ltd. Vs.
R.N. Kapoor, AIR (1959) SC 1262
6. Qudrat Ullah Vs. Municipal Board,
Bareilly, (1974) 1 SCC 202
7. Khalil Ahmed Bashir Ahmed Vs.
Tufelhussein Samasbhai Sarangpurwala,
(1988) 1 SCC 155
8. Ashoka Marketing Ltd. Vs. PNB (1990)
4 SCC 406
9. Corporation of Calicut Vs. K.
Sreenivasan (2002) 5 SCC 361
10. New Bus Stand Owners Association
Vs. Corporation of Kozhikode &
Anr.(2009) 10 SCC 455
(Delivered by Hon’ble Jaspreet
Singh, J.)
1. Heard Shri Jaideep Narain Mathur
learned Senior Advocate alongwith Shri
Rahul Agarwal and Shri Rajat Gangwar
learned counsel for the petitioner and Shri
2 INDIAN LAW REPORTS ALLAHABAD SERIES
Sandeep Dixit learned Senior Advocate
alongwith Shri Suyash Manjul for the
respondent.
2. The aforesaid two petitions have been
preferred under Section 11 (6) of the
Arbitration and Conciliation Act, 1996. Both
involve similar facts and common questions of
law and as such have been heard together and
are being decided by this common judgment.
3. In order to appreciate the controversy
involved in the above petitions, briefly the
facts giving rise to the present petitions are
being noted hereinafter.
4. M/s. Jai Prakash Associates Limited
"hereinafter referred to as JAL" had entered an
agreement for the purposes of consumption of
fly ash which was to be generated as a by
product at 1x250 Unit 9 MW Harduganj
Thermal Extension Power Project, Kasimpur,
Aligarh while the aforesaid fly ash was to be
consumed by the petitioner for its Portland
Pozzollona Cement "hereinafter referred to as
PPC" at Sikandrabad U.P.
5. However, on account of changed
circumstances, in term of the order passed by
the National Company Law Tribunal at
Mumbai & at Allahabad, a scheme for
acquiring the identified cement plants of JAL
in the States of Madhya Pradesh, Andhra
Pradesh, Himachal Pradesh, Uttar Pradesh and
Uttarakhand was prepared and the petitioner
entered in an agreement with JAL on 31st of
March, 2016 which was approved by the
NCLT