Petition for Substitution of Arbitrator upon Challenge

Petition for Substitution of Arbitrator upon Challenge

In the High Court at Calcutta Ordinary Original Civil Jurisdiction

In the matter of:

The Arbitration & Conciliation Act 1996

And

In the matter of:

An application under section 12 read with section 15 of the said Act

And

In the matter of:

An Arbitration Agreement contained in the Contract No. 3 dated ………………

And

In the matter of:

Builders India Private Ltd., a company registered under the Companies Act 1956 and carrying on business at 7A, Camac Street, Calcutta 700 016

Petitioner

versus

1. S.N. Udyog Private Ltd., a company registered under the Companies Act 1956 and carrying on business at 6 S.P. Mukherjee Road, Calcutta 700 025

2. Mr. D.N. Banerjee of 15 Old Post Office Street, Calcutta 700 001

Respondent

To

The Hon’ble Mr. …………………… Chief Justice and His Companion Justices of the said Hon’ble Court

The humble petition of the petitioner above-named most respectfully

Sheweth:

1. By and under an agreement dated ………………… the petitioner undertook to construct houses, flats and guest-houses, for the respondent on agreed specifications, terms and conditions and price.

2. Your petitioner completed the work, obtained payment of the running bills, offered delivery of houses, flats and guest-houses and claimed payment of the final bill.

3. The respondent raised various minor objections with a view to withhold payment of the outstanding bills.

4. Some disputes and differences arose under the Agreement of Reference to arbitration dated ……………………. The parties referred the disputes to the arbitration of Mr. Rajib Khaitan, an Advocate appointed by the petitioner and to Mr. S. Gupta an Engineer appointed by the respondent. The said arbitrators appointed Mr. D.N. Banerjee as the Umpire.

5. The Arbitrators entered into reference dated ………………… and held certain sittings.

6. At the sixth sitting differences of opinion arose between the said arbitrators. The matter was referred to the Umpire on ……………………… who commenced the proceedings and held five sittings.

7. Since …………………………… the said Umpire has not held any meeting or hearing of the said arbitration proceedings. The Umpire is not proceeding with the reference nor has made his Award although more than 4 months have passed since he entered on the reference.

8. The petitioner states that the said Umpire has no intention to complete the proceedings and he is incapable of doing so and as such this Hon’ble Court would be pleased to remove him from further acting as Umpire in the said arbitration proceedings.

9. Your petitioner states that a declaration be made that the Arbitration Agreement shall cease to have effect with respect to the differences and disputes referred to the said arbitrators and ultimately to the said Umpire.

10. Without prejudice to the aforesaid, but in the alternative, your petitioner states that this Hon’ble Court would be pleased to appoint a Sole Arbitrator to adjudicate the disputes among the parties. A Copy of the issues settled by the Arbitrators is annexed hereto marked ‘B’, from which it will appear the nature of the disputes among the parties to be settled by the Arbitrators to be appointed. The Arbitrator to be appointed be directed to enter into reference and complete the proceedings and give his Award within the time to be specified by this Hon’ble Court.

11. Unless orders are made as prayed for herein your petitioner will suffer loss and prejudice.

12. This application is made bona fide and in the interest of justice.

Your petitioner, therefore, humbly prays Your Lordships for the following orders:

(a) The Umpire Mr. D.N. Banerjee be removed from further acting as Umpire in the reference made by the parties herein;

(b)  Declaration that the Arbitration Agreement has ceased to have any effect in respect of the disputes and differences referred to the said Arbitrators and/or the Umpire;

(c)  A suitable person be appointed as the sole Arbitrator to adjudicate the disputes among the parties and give his Award within the time that may be specified by this Hon’ble Court;

(d)  Costs of this application be the costs in the Arbitration proceedings;

(e)  Further orders be made and directions be given as to this Hon’ble Court may deem fit and proper to afford complete relief to your petitioner.

And your petitioner as in duty bound shall ever pray.

Signature of Advocate                                                                             Signature of

for the petitioner                                                                                     the petitioner


Verification

I, ………………………………… son of …………………………………… aged ………… years, by occupation service, working for gain at 7A, Camac Street, Calcutta 700 016 do hereby solemnly affirm and say as follows:

(1)  I am the Manager of Builders India Private Ltd. and Principal Officer and Constituted Attorney. I know and I have made myself acquainted with the facts and circumstances of this case and I am able to depose thereto. I am authorised and competent to verify the aforesaid petition and I do verify the same on behalf of the petitioner.

(2)  The statements contained in the paragraphs 1 to 12 herein above are true to my knowledge based on information derived from records maintained by the petitioner company and I believe them to be true.

Solemnly affirmed by the said Mr. …………………….…………………pursuant to Board Resolution dated ………………of the Builders India Private Ltd. in the Court House at Calcutta on the 15th day of December 1999.

Before me

Commissioner

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