Delhi High Court - Orders
Citicorp Finance India Ltd vs Mr Rajesh Jain on 11 May, 2022
Author: Najmi Waziri
Bench: Najmi Waziri, Swarana Kanta Sharma
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 70/2022
CITICORP FINANCE INDIA LTD ..... Appellant
Through: Mr Inderbir Singh Alag, Sr. Advocate
with Mr Avinash Kumar, Advocate
and Mr Pradeep Bhalla
(AR of Appellant)
versus
MR RAJESH JAIN ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
ORDER
% 11.05.2022 The hearing has been conducted through hybrid mode (physical and virtual hearing).
CM APPL. 22482/2022 (for exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
FAO (COMM) 70/2022
3. This appeal impugns the order of the learned District Judge (Commercial), Central District, Tis Hazari Courts, New Delhi dated 18.09.2021 in OMP (COMM.) No. 95 of 2020 which has set aside the learned Sole Arbitrator's award on respondent's petition under section 34 of Arbitration & Conciliation Act, 1996, on the ground that it was rendered by the Sole Arbitrator who was not appointed with the Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:19.05.2022 16:31:14 respondent's consent. Reliance was placed on the dicta of the Supreme Court in Perkins Eastman Architects DPC & Anr. V. HSCC (India) Ltd. which was rendered on 26.11.2019. As the award had already been pronounced on 22.11.2019, so the rationale benefit of Perkins Eastman (supra) was not available before the learned Sole Arbitrator. Furthermore, the issue of the constitution of the Arbitral Tribunal was never pressed by the respondent albeit in a passing remark in his reply he did say that the Arbitrator was not appointed with his consent. Mr Inderbir Singh Alag, learned Senior Counsel appearing on behalf of the appellant submits that no arguments were raised in this regard, till the arbitral proceedings were concluded. He further submits that the constitution of the Arbitral Tribunal was never questioned substantially or pursued; that the respondent could not have challenged the award apropos the very constitution of the Arbitral Tribunal as this ground is not available under section 34; that the respondent could have raised such grounds under Section 11(6) of the Act but he chose not to. Reliance is placed upon the dicta of this Court in Kanadia Infratech Limited vs. Dalmia Cement (Bharat) Limited 284 (2021) DLT 722 inter alia reads as under:-
"...Now, even if at this belated stage this Court tests the case of petitioner applying the ration of law laid down in Perkins Eastman (supra) and TRF Limited (supra), it finds that in those cases the Hon'ble Court had dealt with petition filed under the provisions of Section 11(6) of the Act, whereas the present petition has been filed under Section 34 of the Act, provisions whereof prescribe the ground on which an arbitral award can be challenged and set asid and not the mandate of appointment of Arbitral Tribunal. Hence, reliance placed upon decision in Perkins Eastman (supra) is Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:19.05.2022 16:31:14 of no help to the case of the petitioner..."
4. The court is prima facie of the view that insofar as the issue of constitution of the Arbitral Tribunal was not pressed before the latter did not have occasion or reason to adjudicate on it; therefore, the same could not form the basis for the award being set aside; the constitution of the Tribunal was on the basis of clause 16 of the agreement between the parties, which confers upon the present appellant the authority to appoint the Sole Arbitrator, before which the benefit of the dicta in Perkins Eastman was not available to him when the award was passed.
5. Issue notice to the respondent through ordinary process, Speed Post, approved courier, WhatsApp, Signal, SMS, e-mail, dasti, through viable modes of electronic service, through counsel as well, returnable on 07.09.2022.
6. A copy of this order too shall be served upon the respondent before the next date, for adjudication on the point of law raised.
NAJMI WAZIRI, J SWARANA KANTA SHARMA, J MAY 11, 2022/zp Signature Not Verified Digitally Signed By:ZEENAT PRAVEEN Signing Date:19.05.2022 16:31:14