***

RAJ MOHAN SINGH, J. (ORAL) –

1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (for short “the Act”) for appointment of an arbitrator to adjudicate the dispute arising out of contract agreement dated 21.11.2013.

2. Admittedly, a civil suit for recovery at the instance of the respondents is pending between the parties. The petitioners have already moved an application under Section 8 of the Act for referring the matter to the arbitrator. The said application is still pending before the trial Court.

3. In view of the law laid down by the Hon'ble Apex Court in Vijay Kumar Sharma @ Manju vs. Raghunandan Sharma @ Baburam and others 2010 (2) SCC 486 and M/s S.B.P. And Co.Vs. M./s Patel Engineering Ltd. and another, 2005 (4) RCR (Civil) 747, the provisions of Sections 8 and 11 of the Act are complementary to each other and there is no bar to invoke jurisdiction of the High Court under Section 11 (6) of the Act during pendency of the application under Section 8 of the Act.

4. The tentative value of the claim of the petitioner is between Rs. 50 to 60 lacs, whereas, subject matter of suit for recovery at the instance of the respondents is about Rs. 4 crores as of now exclusive of interest component.

5. During the course of arguments, both the parties have arrived at a consensus that the matter be referred to sole arbitrator, where both the parties would file their claims and counter claims in accordance with law. The only grievance of the respondents is that in a suit for recovery, the respondents have affixed the court fee to the tune of Rs.3,87,775/- and in view of settlement arrived at between the parties for referring the dispute to the arbitrator, the said court fee be ordered to be refunded to the respondents.

6. In support of his contention, learned counsel for the respondents has placed reliance upon SLP (Civil) Nos. 3063-3064 of 2021 titled The High Court of Judicature at Madras Rep. by its Registrar General vs. M.C.Subramaniam and others to contend that Section 89 of the CPC shall cover the benefit of Section 69-A of the Court Fee Act, 1955 (i.e. the relevant act of the State). In view of Section 16 of the Court Fee Act, the court fee can be refunded to the respondents where a settlement has been arrived at between the parties for referring the dispute to the Arbitrator. So far as the subject matter of civil suit is concerned, both the parties have brought out the issue from the jurisdiction of the Civil Court for reference to the Arbitrator.

7. In view of law laid down in Pardeep Sonawat vs. Satish Prakash @ Satish Chandra, 2015 (1) RCR (Civil) 955 (P&H), Section 89 CPC would apply even in cases of counter claims in suits and also in appeals, counter objections and counter appeals and benefit of Section 16 of the Court Fee Act is available to the appellant in appeal in case of settlement irrespective of fact whether it was before the Lok Adalat or otherwise. The refund of Court fee cannot be denied merely because the matter has not been settled before the Lok Adalat. Reference can be made to A. Sreeramaiah Vs. Sought Indian Bank Ltd., Bangolore and another, 2007(5) RCR (Civil) 374, Kamalamma Vs. Honnali Taluk Agricultural Produce Cooperative Marketing Society Ltd., Honnali, 2010(1) AIR Kar. R 279 and CR No.874 of 2009 titled Tarun Juneja Vs. Hukam Singh decided on 15.09.2009.

8. In view of above, I deem it appropriate to grant liberty to the respondents to approach the trial Court for refund of the court fee in question and for availing the benefit under the Court Fee Act.

9. For the reasons recorded herein above, I deem it appropriate to appoint Hon'ble Mr.Justice Rajiv Sharma (Retd.) House No.505 (Backside First Floor), Sector 36-B, Chandigarh and Swastik Sadan, Cliffend Estate, Shimla (HP) (Mobile: 09816700002) as the sole Arbitrator, to resolve the dispute/difference between the parties. The appointment of the Arbitrator shall be subject to the declaration to be made by him as required under Section 12 of Arbitration and Conciliation Act, 1996 in respect of his independence and impartiality to settle the dispute between the parties.

10. The Arbitrator would complete the proceedings within the specified time in terms of Section 29-A of the said Act. The Arbitrator shall be paid fee in accordance with the IVth Schedule of the Act as amended from time to time. The fee shall be equally shared by the parties.

11. The venue of the Arbitration proceedings shall be the place to be disclosed by the Arbitrator as per his convenience.

12. A copy of this order be dispatched to the Arbitrator at the following address:-

Hon'ble Mr.Justice Rajiv Sharma (Retd.) House No.505 (Backside First Floor), Sector 36-B, Chandigarh and Swastik Sadan, Cliffend Estate, Shimla (HP) (Mobile: 09816700002).

Order accordingly.

********