M/S Neo Developers Private Limited vs Anuj Kumar & Ors on 24 August, 2022

[Cites 5, Cited by 0]

Delhi High Court - Orders

M/S Neo Developers Private Limited vs Anuj Kumar & Ors on 24 August, 2022

1. In ARB.P. 254/2019, the petitioner seeks reference to arbitration for adjudication of its disputes under an agreement titled as "Collaboration Agreement", dated 07.04.2017 ["the Agreement"], entered into between the parties.

Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 1 of 6 Signing Date:26.08.2022 11:16:58

2. O.M.P.(I) (COMM.) 123/2019 is a petition under Section 9 of the Arbitration and Conciliation Act, 1996 ["the Act"], filed in anticipation of arbitral proceedings between the parties under the Agreement.

3. The arbitration agreement, contained in Clause 17 of Agreement, contemplates adjudication of disputes by arbitration of a sole arbitrator, and also designates New Delhi as the venue of the arbitration. By virtue of Clause 18 of the Agreement, Courts of Delhi have been vested with exclusive jurisdiction to entertain all disputes under the Agreement.

4. The petitioner sought to invoke arbitration by communications dated 14.05.2018 and 29.05.2018, and also appointed an Arbitrator. Although the learned Arbitrator sought to enter into the reference, the respondents originally disputed the existence of the Agreement between the parties.

5. The arbitration clause in the Agreement reads as follows: -

"17. ARBITRATION That in case of any dispute between the parties of any nature related to and/or touching upon and/or in connection with the said Project and/or this Agreement, same shall be referred for arbitration to a Sole Arbitrator to be appointed mutually by the parties. The language for Arbitration shall at all times be English and the venue for arbitration shall be New Delhi. The costs of arbitration including the Arbitrator's fee shall be shared between the parties jointly."

6. In view of the fact that the respondents had not agreed to the appointment of the Arbitrator, the petitioner filed the present petition under Section 11 of the Act seeking appointment of an arbitrator. Ms. Shilpa Chohan, learned counsel for the petitioner, submits that, the Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 2 of 6 Signing Date:26.08.2022 11:16:58 unilateral appointment of the Arbitrator, by the petitioner, was non est, which has also been recorded in the order dated 22.04.2019, passed in O.M.P.(I) (COMM.) 123/2019, filed by the petitioner herein.

7. Notice was issued in ARB.P. 254/2019 on 22.04.2019, and the parties were referred to mediation by an order dated 24.11.2021.

8. In O.M.P.(I) (COMM.) 123/2019, an interim order was passed on 22.04.2019, in the following terms:-

"7. The Petitioner has made out a prima facie case and balance of convenience lies in favour of the Petitioner. Irreparable loss and injury will be caused to him in case ex parte restraining orders are not passed. Till the next date of hearing, the Respondents are directed to maintain status quo with respect to the title and possession in respect of the property in Khasra No. 20//22/2 (1-17), 23(7-7), 24/1 (1-13), 24/14/1 (5-12), 3/1 (2-11), 4/2 (2-8), 5 (7-4), 6/1 (0-12), 3/2 (5-7), 7 (8-0), 8(8-0) situated at village Dhrampur, Sector-107, Tehsil Gurgaon, Haryana."

9. By the last order dated 05.08.2022, it was recorded as follows: -

"1. Learned counsel for the parties state that the mediation proceedings are almost at the stage of a successful settlement. Mr. Jitender Chaudhary, learned counsel for the petitioner, states that the respondent has made a proposal in the course of mediation proceedings, and that he is hopeful of a successful resolution of the disputes before the learned Mediator on the next date of hearing, which is 18.08.2022. Mr. Neeraj Kumar Jha, learned counsel for the respondent, also endorses this submission.

2. In view of the fact that, learned counsel for both parties are very hopeful that the disputes will be settled on 18.08.2022, at their request, the hearing of these petitions is adjourned on 24.08.2022.

3. It is made clear that, in the event the mediation proceedings are not concluded on 18.08.2022, these petitions will be heard on the next date of hearing. If the Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 3 of 6 Signing Date:26.08.2022 11:16:58 parties still require some more time to conclude the mediation proceedings, necessary directions can be incorporated in the order while disposing of the petition, for example, by appointing an arbitrator with a request to defer the proceedings for a short period. Learned counsel for both parties should remain ready to make their submissions on the next date of hearing.

4. List on 24.08.2022."

10. Further to the said order, the learned Mediator has submitted a Report stating that the mediation proceedings between the parties were unsuccessful. However, learned counsel for the parties jointly submit that they would like to make a further attempt to settle the disputes through mediation, and will request the learned Mediator to reopen the proceedings for a short period of time. As stated in paragraph 3 of the order dated 05.08.2022, they submit that an arbitrator may also be appointed who can enter into the reference after a short period of time in the event the mediation proceedings are unsuccessful.

11. Mr. Neeraj Kumar, learned counsel for the respondents, submits that the arbitrator may be appointed without prejudice to the contentions of the parties regarding the interpretation of the Agreement. However, he does not dispute the fact that the respondents have signed the Agreement.

12. In view of the aforesaid submissions, the petitions are disposed of with the consent of learned counsel for the parties, with the following directions: -

a. The parties are at liberty to approach the learned Mediator to reopen the mediation proceedings, and make a further attempt for settlement of the disputes inter se through mediation. The parties are directed to appear before the Mediator on 05.09.2022. Learned Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 4 of 6 Signing Date:26.08.2022 11:16:58 counsel state that they seek a further period of two months to enable a settlement.

b. In the event the mediation proceedings fail, the disputes will be adjudicated by arbitration under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Shershah Road, New Delhi- 110503 ["DIAC"]. DIAC is requested to appoint an arbitrator from its panel for this purpose.

c. DIAC is directed not to enter into the reference until 01.11.2022. In the event the mediation proceedings are still in progress, and the parties require some further time for this purpose, they may jointly request DIAC/the Arbitrator to postpone the reference further. Conversely, if the mediation is unsuccessful, and is closed before 01.11.2022, either of the parties may approach DIAC/the Arbitrator to enter into the reference forthwith.

d. The Arbitrator is requested to make a declaration in terms of Section 12 of the Act prior to entering into the reference. e. The remuneration of the Arbitrator will be computed in terms of Schedule IV of the Act.

f. The interim order dated 22.04.2019 in O.M.P.(I) (COMM.) 123/2019 is made absolute. It is made clear that the said interim order will continue to operate until, either a settlement is reached between the parties in the course of mediation proceedings, or until the Arbitrator has had an opportunity to consider the matter on merits. It is open to either of the parties to file an application under Section 17 of the Act before the Arbitrator for further interim orders, or for variation, vacation, modification of the order dated Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 5 of 6 Signing Date:26.08.2022 11:16:58 22.04.2019, which will be adjudicated by the Arbitrator on its own merits, in accordance with law.

13. It is made clear that all rights and contentions of the parties are left open for adjudication before the Arbitrator, which the Arbitrator will decide in accordance with law.

14. The petitions stand disposed of with these directions.

PRATEEK JALAN, J AUGUST 24, 2022 'Bhupi'/ Click here to check corrigendum, if any Signature Not Verified Digitally signed By:SHITU NAGPAL ARB.P. 254/2019 & O.M.P.(I) (COMM.) 123/2019 Page 6 of 6 Signing Date:26.08.2022 11:16:58

Unlock Advanced Research with PRISMAI

Delhi High Court - Orders