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Arbiitration Act

(Querist) 30 January 2010 This query is : Resolved 
A petition for appointment of arbitrator u/s 11 (4)of Arbitration and Conciliation Act has been filed before the High Court. The petitioner has not annexed any proof of service of notice on other party for appointing the arbitrator.
Can I raise a preliminary objection that in absence of notice the petition is not maintainable? In other words, is notice for appointing the arbitrator a precondition for filing a petition before the High Court?
Devajyoti Barman (Expert) 30 January 2010
Yes expiry of thirty days from the date of sending notice to appoint an arbitrator is a pre requisite to file an application u/s 11(4).
James Arun (Expert) 31 January 2010
Mr Tripathi,

It depends.

A reading of s/s 2, 3, 4, 6, clearly indicate notice is required to be given to the Opposite Party to initiate arbitration proceedings.

When Notice is not be required:
Appointment is subject to your client's and the opposite party's agreed procedure, which may include a direct application to the HC as a preferred method. In this case, no notice is required.

Secondly, if there is no agreed procedure, and if the arbitration clause mentions only one arbitrator, as per s/s 4, it does not appear that notice is required.

Even a reading of Sec 9 and Sec 21, it does not appear that notice needs to be given to the opposite party.

Swami Sadashiva Brahmendra Sar (Querist) 31 January 2010
Thank you Mr. Devjyoti and Mr James.
In my case the agreement simply says that dispute shall be resolved by arbitration. No procedure or number of arbitrators has been stipulated. It has been alleged in the petition that request/notice for appointing arbitrator was sent and said letter has been annexed with petition, but nothing has been disclosed about mode of service of notice. I want raise a preliminary objection that notice has not been given to the opposite party therefore the petition is not maintainable.
Kindly advise with case law, if any.
Raj Kumar Makkad (Expert) 31 January 2010
Repeated quarry.
Swami Sadashiva Brahmendra Sar (Querist) 31 January 2010
I am sorry mr. makkad. The query was repeated under bonafied mistake as I could not see my first query immediately after posting .
James Arun (Expert) 01 February 2010
Maintainability of a Petition just because of the absence of proof of notice may not be a strong point to dismiss the petition. In your case, since there is no mention on the number of arbitrators, and there is no pre-decided procedure, and since the opposite party is claiming to have sent you a letter, and if such letter has been posted by ordinary post or sent by courier, with no proof shown, the maximum you can do is it get a benefit of extension of time to file a response, after assimilating all the required data. Non-production of proof of notice may not help in dismissal of the petition itself. AIR 1999 SC 565 Sundaram Finance Ltd. Vs NEPC India Ltd is a case in point, though the case is u/s 9 and 21. Good luck.
Sachin Bhatia (Expert) 01 February 2010
Adinath@Avinash Patil (Expert) 03 February 2010
SANDEEP GOYAL (Expert) 05 February 2010
Dear Mr. Tripathi,
I am fully satisfied with the opinion of Mr. James Arun.

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