Authorized Representative Nakul Singh Shekhawat vs For Petitioner

Judgment

1. Dhankha Devi W/o Jagnath, R/o 178, Ghasio Ki Dhani, Gram-Mundota, Dist.-Jaipur, 303706 (Raj.)

2. Sadhuram Jat S/o Mool Chand Jat, R/o 178, Ghasio Ki Dhani, Gram-Mundota, Dist.-Jaipur, 303706 (Raj.)

3. Lakshman Singh S/o Mool Chand Jat, R/o 178, Ghasio Ki Dhani, Gram-Mundota, Dist.-Jaipur, 303706 (Raj.)

4. Mamta Jat W/o Sadhuram Jat, R/o 178, Ghasio Ki Dhani, Gram-Mundota, Dist.-Jaipur, 303706 (Raj.) ----Non-Applicant For Petitioner(s)

: Mr. Shubham Garg For Respondent(s) : None JUSTICE ANOOP KUMAR DHAND Order 07/08/2025

1. The instant Arbitration Application under Section 11 (6) of the Arbitration and Conciliation Act, 1996 (for short, ‘Act of 1996’) has been filed by the applicant for the appointment of an Arbitrator to adjudicate/resolve the dispute between the parties arising out of the loan agreement dated 06.07.2018 containing arbitration clause 12.1, which reads as under:- “Arbitration Clause 12.1: 12.1 All claims, disputes or differences whatsoever which may at any time hereafter arise between the parties hereto concerning this agreement or its construction of effect or as to the rights, duties, (2 of 5) [ARBAP-20/2025] obligations of liabilities of the parties hereto or either or them under or by virtue of or in connection with this agreement or any document executed or security created pursuant there to or otherwise as to any other manner in any way connected with or arising out of or in relation to the subject matter to this agreement (including, without limitation, enforcement of security) shall be referred to the arbitration of a sole arbitrator appointed by the company. The arbitration shall be conducted in accordance with and subject to the provisions of the arbitration & conciliation act, 1996 or any statutory modification or re-enactment thereof for the time bring in force. The place of arbitration shall be as mentioned in serial no (15) of the schedule”.

2. Counsel for the applicant submits that certain amount was borrowed by the non-applicants and the same was not repaid by them, hence a dispute has arisen between the parties and by invoking the arbitration clause, contained under the loan agreement, the Arbitrator was appointed. Counsel submits that the non-applicant did not participate in the arbitration proceedings and therefore, an ex-parte interim order was passed by the Arbitrator on 23.09.2020 granting interim relief to the applicant. Thereafter, while the non-applicant still had not proceeded with the Arbitral proceedings and ex-parte award dated 27.11.2020 was passed by the sole Arbitrator in favour of the applicant. Counsel submits that after passing of the aforesaid arbitral award, an execution application was filed by the applicant under Section 36 of the Act of 1996, before the Commercial Court No. 3, Jaipur Metropolitan-II, who dismissed the same on the ground that as per the judgment passed by the Hon’ble Apex Court in the cases of TRF Ltd. Versus Energo Engineering Projects Ltd.: reported in AIR 2017 SC 3099 and Voestalpine Schienen Gmbh Vs. Delhi Metro Rail Corporation Ltd., reported in 2017 (4) SCC 665, the interested party to the lis is not authorized to (3 of 5) [ARBAP-20/2025] appoint the Arbitrator and unilateral appointment of the Arbitrator is not sustainable in the eyes of law and therefore, in the light of the judgments passed by the Hon’ble Apex Court in the cases of TRF Ltd. (Supra) and Voestalpine Schienen (Supra), the award passed by the Arbitrator was set aside vide order dated

04.10.2023. After rejection of the execution application, the applicant filed an application before the Commercial Court No. 2, Jaipur Metropolitan-II, under Section 9 of the Act of 1996, which is still pending before the Commercial Court No.2, hence the instant application has been submitted under Section 11(6) of the Act of

3. Heard and considered the submissions made at the Bar and perused the material available on record.

4. Perusal of the record indicates that certain amount was borrowed by the non-applicants for which a loan agreement was executed between the parties on 06.07.2018 and when the said borrowed amount was not refunded, the applicant invoked the arbitration clause and an Arbitrator was appointed, who passed an ex-parte award on 27.11.2020 and thereafter the execution application was rejected by the Commercial Court vide order dated

04.10.2023 in the light of the judgment passed by the Apex Court in the cases of TRF Ltd. (Supra) and Voestalpine Schienen (Supra).

5. This Court finds that the dispute raised between the parties with regards to non-refund of the borrowed amount by the non- applicants, is required to be adjudicated by the Arbitrator.

6. In view of the reasons stated above, the instant application stands allowed and this Court appoints Shri Banwari Lal Sharma (4 of 5) [ARBAP-20/2025] (Retd. Judge), resident of Plot No. 49 and 50, Theme Colony, 4-D Campus, 80Ft Road, Road No.1, Murlipura Jaipur-302039 (Mob. 9414308232) as Sole Arbitrator to adjudicate/resolve the dispute between the parties.

7. The appointment of the Sole Arbitrator is subject of declaration being made under Section 12 of the Arbitration and Conciliation Act, 1996 (for short 'the Act of 1996') with respect to the independence and impartiality and ability to devote sufficient time to complete the arbitration proceedings within the prescribed period.

8. The arbitration fee of the Sole Arbitrator shall be payable in accordance with the provisions contained in the Manual of Procedure of Alternative Dispute Resolution, 2009 as amended by the Manual of Procedure for Alternative Dispute Resolution (Amendment), 2017 vide notification dated 23.03.2017 read with 4th schedule appended to the Act of 1996 or as determined by the Arbitrator with consensus of parties.

9. The Registry is directed to intimate the Arbitrator-Shri Banwari Lal Sharma (Retd. Judge), resident of Plot No. 49 and 50, Theme Colony, 4-D Campus, 80Ft Road, Road No.1, Murlipura Jaipur-302039 (Mob. 9414308232) for his approval and declaration in terms of Section 11(8) read with Section 12(1) of the Act of 1996.

10. All issues raised by the parties before the Arbitrator shall be considered in accordance with law.

11. Since as per Section 29A of the Act of 1996, the arbitration proceedings are required to be concluded within the scheduled time as stipulated therein, it is expected from the parties to (5 of 5) [ARBAP-20/2025] appear before the Arbitrator on 08.09.2025 or on any other date as informed by the Arbitrator subject to agreement by the parties. Furthermore, the parties shall provide their respective E-mail/ contact number/ mobile number and/or also of their authorized representatives/ Lawyers appearing on their behalf before the Arbitration Tribunal, in order to facilitate the Arbitrator to send information/communication to the parties, whenever required. The information send by the Arbitrator, on such address/ E-mail/ cellphone of the parties or to their authorized representatives/ Lawyers, shall be treated as sufficient communication unless same is not changed.

12. Accordingly, the present arbitration application stands allowed. Ashu/159 (ANOOP KUMAR DHAND),J