The Calcutta HC in the matter of Bharat Vanijya Eastern Pvt ltd v/s State of West Bengal held that when a civil suit is disposed of by referring the parties to arbitration u/sec 89 of CPC and an arbitrator is appointed with the consent of the parties then the suit cannot be revived.
The petitioner & the respondent had entered into a contract however due to some issue regarding payment the parties decided to go for arbitration and were referred to the same by the court.
The arbitral award was passed in favor of the petitioner before the HC which was partly allowed.
The same was set aside by division bench of High court on the ground of being unreasoned.
Thus the petitioner approached the Calcutta HC seeking to appoint a new arbitrator as the original one appointed by the HC has expired and sought to revive the suit.
The HC observed that the petitioner in the pending suit filed application on the basis of an agreement between the parties and this court passed an order in terms of section 89 of Cpc and referred the matter to arbitration.
The court referred to the decision in the case of Shailesh dhairyawan v/s Mohan Balkrishna Lulla and observed that the dispute was referred to arbitration on the basis of agreement between the parties to settle the dispute through arbitration and this shows their intention of not coming back to this court again and thus the suit cannot be revived.
The court also noted that as per sec 11(5) if the parties fail to appoint an arbitrator as per the agreed procedure the other party wanting to appoint an arbitrator must make a request to the opposite party to agree to appoint the arbitrator within 30 days of such request failing to which the appointment is done by Chief justice of the HC.
The court observed that here the petitioner did not make such a request and therefore the application to appoint a new arbitrator is non-maintainable.
Written By Amruta Pawar, semester 6th, College: School of Law, the University of Mumbai thane sub-campus.
