Calcutta High Court
Srei Equipment Finance Limited vs Bge Mining Pvt. Ltd. And Anr on 16 April, 2025
Author: Shampa Sarkar
Bench: Shampa Sarkar
OC 49
ORDER SHEET
AP-COM/571/2024
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL DIVISION
SREI EQUIPMENT FINANCE LIMITED
VS
BGE MINING PVT. LTD. AND ANR.
BEFORE:
The Hon'ble JUSTICE SHAMPA SARKAR
Date: 16th April, 2025.
Appearance:
Mr. Sariful Haque, Adv.
Mr. Rajib Mullick, Adv.
Mr. Biswaroop Ghosh, Adv.
...for the petitioner
Mr. Snehashis Sen, Adv.
...for the respondent no.2
The Court:
1. Despite service on many occasions, none appears on behalf of the
respondent no.1. The respondent No.1 is a company. The respondent
No.2 is the director. In view of the pendency of a suit between the
petitioner and the respondent No.2, the petitioner submitted that at this
stage, it would not want to proceed against the respondent No.2 in the
arbitral proceeding.
2. Accordingly, the name of the respondent no.2 has been expunged from
the array of respondents.
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3. This is an application for appointment of a learned Arbitrator to
arbitrate upon the disputes between the parties. The petitioner relies
upon Clause 23 of the Loan-cum-Hypothecation Agreement. According
to the said clause, any dispute and/or difference arising out of,
concerning or touching upon the agreement at any time during its
subsistence or thereafter, including disputes and/or differences relating
to the interpretation of the agreement or any clause thereof, shall be
referred to arbitration of a sole arbitrator to be appointed by the
company. The provisions of the Arbitration and Conciliation Act, 1996
have been made applicable. It is provided that the seat of arbitration
shall be same as the Court or forum mentioned in the Loan-cum-
Hypothecation Schedule. In the present case, the hypothecation
schedule mentions that courts at Kolkata will have jurisdiction over the
disputes arising out of the said agreement.
4. The petitioner is a company carrying on business, inter alia, of
providing financial assistance to parties who are interested to acquire
construction equipment, vehicles and other machineries. The
respondents entered into the Loan-cum-Hypothecation Agreement on
March 31, 2020 with the petitioner.
5. The petitioner allegedly extended a loan of more than Rs.21 crores to
the respondents. It is alleged that the respondent failed and neglected to
pay the loan as per the repayment schedule. The loan was recalled and
the agreement was terminated. The petitioner also moved an
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application for interim measures before the High Court, but the same
was disposed of, granting liberty to the petitioner to invoke arbitration.
6. The petitioner issued a notice dated March 20, 2023 under Section 21
of the Arbitration and Conciliation Act, 1996. The respondent no.1,
borrower, replied to the said notice and disputed the claim of the
petitioner. The respondent No.1 did not agree to the name of the learned
Arbitrator, as suggested by the petitioner. Thus, the petitioner has
approached this Court for appointment of a learned Arbitrator.
7. The arbitration clause is not in dispute. The jurisdiction of this Court is
also not in dispute. The fact that there is a live dispute between the
parties with regard to non-payment of dues is available from the
records. The petitioner has raised a claim which the respondents have
denied. Moreover, unilateral appointment of an arbitrator by the
petitioner is no more permissible in law and accordingly, the respondent
No.1 objected to the name of the arbitrator suggested by the petitioner.
8. Under such circumstances, the Court appoints Hon’ble Justice Subhro
Kamal Mukherjee, former Chief Justice of the High Court of Karnataka,
as the learned Arbitrator, to arbitrate upon the disputes between the
parties. This appointment is subject to compliance of Section 12 of the
Arbitration and Conciliation Act, 1996. The learned Arbitrator shall fix
his own remuneration as per the Schedule of the Act.
9. All objections which are available to the respondent with regard to
admissibility, arbitrability, limitation etc. are kept open to be decided by
the learned Arbitrator, if raised.
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10. AP-COM/571/2024 is, accordingly, disposed of.
(SHAMPA SARKAR, J.)
B.Pal