Guidance on Arbitration Case


Respected Sirs,

I want sum information, legal guidance on the following topic.

FACTUAL BACKGROUND

On the day 15 th January 2007,   I as a Lesser & Sigma Corp, Thane (West),             Pin       400 601 as a Lessee having a business Rent a car entered in to agreement having terms & conditions thereof. Agreement Contract period was 30 month having date of commencement 15th February 2007 & expiry on 14th July 2009.  As per the agreement terms & conditions, after making the marginal amount payment, the lessee will be paid fixed amount as a rent/hire charges per month; i.e6,000.00 during the contract/agreement period for a 30 month, if the lessee making any default in payment for subsequent three month from the date of payment the lessee will have to pay the interest rate of     24 % Per Annum on default amount as per agreement clause (2). As per agreement Clause 9 Lessee will return the car after completion of agreement/contract period.

BREACH OF AGREEMENT & DISPUTE

 Breach of our agreement/disputes as follows:

1)     Firm has not paid the monthly rent/hire charges from the Month of Sep 2007 (last payment received on Aug 2007) till completion of agreement.  Firm has not paid the interest on defaulted amount as per agreement.

2)     Firm has not returned the vehicle till date as per the agreement clause after expiry of agreement period which were expired on 14th July 2009.

3)    As per agreement/contract clause No. 12, any disputes arise between the Lessor and the Lessee or any question arising under the same shall be referred to the Arbitrators, one each to be appointed by either side.

4)    I had sent the demand notice & notice through registered AD post for payment & appointment of arbitrator for his side as per arbitration clause. But all the notices are received back stating addressee not found. As the police has taken action on the firm against various IPC & RBI act closed their business &filed a charge sheet in court &case is pending before court till date.

In this case can I

a)     Appoint sole arbitrator.

b)    For appointment of arbitrator to whom asked or write a letter

c)     As per limitation act arbitration case is valid.

d)     As there is an arbitration clause. If opponent party not appoint arbitrator can I file Civil suit.

Regards

 
Reply   
 
LAWYER-ADVOCATE

NANDKUMAR B.SAWANT.M.COM.LL.B.(MUMBAI),ADVOCATE

MOBILE.9271971251,9960223100

e.mail.adv.nbsawant@yahoo.co.in

e.mail.nandkumarbs@sify.com


.REGARDING YOUR MATTER KINDLY NOTE THAT.

1.YOU HAVE ALL DOCUMENTS BUT KINDLY NOTE THAT THE OTHER SIDE WILL NOT RESPOND YOU  EASILY HENCE IT IS ADVISIBLE TO FILE A PRIVATE CRIMINAL COMPLAINT TO THE CHIEF JUDICIAL MATISTRATE MENTIONING ALL FACTS .COURT WILL HEAR YOU AND WILL ISSUE PROCESS AGAINST THE SAID PERSONS WHO ARE ACCUSED AND HOLDING YOUR VEHICLE.COURT WILL CALL REPORT OF AREA POLICE STATION AND POLICE WILL ARREST THE SAID PERSON AND PRODUCE BEFORE THE COURT WITH THE PROPERTY .VEHICLE.YOU MAY CLAIM THE SAID VEHICLE FROM THE COURT.

2ABOUT YOUR MONEY CLAIMS IT IS ADVISIBLE TO FILE A CIVIL SUIT IN COURT AND CLAIM THE MONEY ARREARS.NOTICE WILL BE ISSUED AGAINST SAID PERSONS AND YOUR PURPOSE WILL BE SERVED.

3REGARDING ARBITRATORS APPOINTMENT KINDLY NOTE THAT ,IT IS ALWAYS BETTER TO REFER THE MATTER TO THE COURT ,YOU WILL GET JUSTICE.

YOU MAY WRITE AND SEND DETAILS FOR ANY FURTHER HELP.GOOD LUCK.

WITH BEST REGARDS TO YOU YOUR FAMILY AND FRIENDS.

THANKS.

 
Reply   
 



Dear N. Sawant Sir,

As your per advice, for money claim file a civil suit in court. But as per my some little knowledge,
 
Once an arbitration clause has been made in the agreement, the only dispute resolution forum available is arbitration and courts do not interfere in such matters and have limited role. Please advice me further

regards

 
Reply   
 
POWER OF DEFENSE IS IMMENSE

Yes Mr Shalaka you have excellant knowledge of law and procedure.

 
Reply   
 
Student

Mr.Shlaka Patwardhan,

First of all it is advisable that you put the other party to notice of appointing your Arbitrator calling the other party to appoint its Arbitrator (after which act both the Arbitrators of the side will appoint Umpire) so as to constitute Arbitral Tribunal.  After notice if the other party fails to appoint its Arbitrator file a Section 11 Petition seeking appointment of arbitrator for the other side and in the alternate seeking relief of  Arbitral Tribunal having only one Arbitrator.

Best Regards

Daksh

 
Reply   
 
SENIOR OFFICER (LEGAL)

sir,

iom agreeing the advise of mr.daksh

 
Reply   
 

Mr shalaka patwardhan under arbitration act sec. 9 you can appoach district court - as Principal civil court  having jurisdiction over the said area. for any interim measures as worded below: - 

 

Quote

9.Interim measures etc.by Court.- A party may, before, or during arbitral proceedings or at any time after the making of the arbitral

award but before it is enforced in accordance with section 36, apply to a court-

(i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or

(ii) for an interim measure or protection in respect of any of the following matters, namely:-

(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;

(b) securing the amount in dispute in the arbitration;

(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to

which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or

building in the possession of any party or authorising any samples to be taken or any observation to be made, or experiment to be

tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;

(d) interim injunction or the appointment of a receiver;

(e) such other interim measure of protection as may appear to the Court to be just and convenient,

and the Court shall

Unquote

Regards


Total likes : 1 times

 
Reply   
 
Advocate

Arbitration and Conciliation Act,1996 is quite complex to understand and apply for even lawyers and courts.

To answer your query

 

a)  you cannot appoint sole arbitrator as the arbitration-clause provides for two arbitrator, each from both side. And moreover two arbitrators cannot be appointed as S.10(1) prohibits appointment of even number of arbitrators.

b)    if the other parties does not respond to the notice of appointment of arbitrator you have file application before Chief Justice or his delgate for appointment of second arbitrator

c)    Recovery of monthly dues for Septemer and October'2007 would be time barred., but you can recover the rest amount, as it is still within 3 years of limitation period.

d)     It is not that you cannot move civil court if there is arbitration clause. The jurisdiction of civil court is not expressely excluded. S. 8(1) provides that when any dispute having arbitration clause is pending before the civil court, and a party to the suit applies before filig its first statement of defence, then civil court has power to refer dispute to the arbitrator. 

 \

 
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LAWYER-ADVOCATE

KINDLY REFER YOUR FACTS OF THE MATTER.YOU HAVE ALREADY MENTIONED THAT THE SAID OPPOSITE PARTY HAS CLOSED THE BUSINESS AND SEVERAL CRIMINAL SECTIONS OF I.PC. AND R.B.I .ACT ARE APPLIED BY THE POLICE AGAINST THE SAID PARTY.CHARGE SHEET IS ALREADY FILED AGAINST THE SAID PARTY. HENCE IT CAN BE NOTICED THAT THE OTHER SIDE IS VERY SMART AND NOT EVEN RETURNED YOUR VEHICLE AFTER THE PERIOD IS OVER.

IN CASE YOU FILE A CRIMINAL COMPLAINT AS SUGGESTED IN ADDITION TO CIVIL/ARBITRATION MATTER YOU WILL SUCCEED. BUT KINDLY NOTE THAT BE PRACTICLE AND DO NOT GO AS PER MERE LAW BOOK PROVISIONS OF CIVIL MATTER ONLY .IT WILL GET PROLONGED FROM ONE COURT TO ANOTHER AND TILL THAT TIME YOUR VEHICLE WILL PASS FROM SEVERAL PARTIES PLEASE NOTE.HENCE BE PRACTICLE AND FILE A CRIMINAL COMPLAINT ALSO AND SEE THE RESULTS.

WE HAVE SUCCESSFULLY RECOVERED SEVERAL BAD DEBTS  AND OUTSTANDING  AND DISPUTED AMOUNTS  OF OUR CLIENTS BY USING THIS PROCEDURE PLEAE NOTE

GOOD LUCK.

 
Reply   
 
ADVOCATE

You cannot appoint the sole arbitrator becaus of the terms of the arbitration clause in your agreement for appointment of one arbitrator by each party.

You can just send a notice naming a person as arbitrator from your ends and asking the Company to appoint their arbitrator within a period of 30 days.

In case the Company does not appoint any arbitrator within 30 days, you can prefer a petition before the High Court of competant jurisdiction under section 11 of the act for appointment of arbitrator.

Whereas the matter relating to filing of civil suit is concerned, it is not possible if the Company appears and files an application under section 8 of the act.

Whereas the matter relating to filing ofcriminal case is concerned, civil and criminal proceedings are separate matters and may run simultaniouly.

 
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