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M/S.Nucleus Software Exports Limited vs Essel Finance Home Loans Limited on 13 September, 2022

Author: Prateek Jalan

Bench: Prateek Jalan

                          $~2
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      ARB.P. 686/2022

                                 M/S.NUCLEUS SOFTWARE EXPORTS LIMITED ..... Petitioner
                                              Through: Mr. Akshay Makhija, Senior
                                                       Advocate    with    Ms.  Naina
                                                       Kejriwal, Advocate.

                                                    versus

                                 ESSEL FINANCE HOME LOANS LIMITED                    ..... Respondent
                                               Through: None.

                          CORAM:
                          HON'BLE MR. JUSTICE PRATEEK JALAN

                                                    ORDER

                          %                         13.09.2022
                          I.A. 14910/2022

1. This is an application for amendment of the petition under Section 11 of the Arbitration and Conciliation Act, 1996 ["the Act"]. Mr. Akshay Makhija, learned Senior Counsel for the petitioner, submits that the arbitration clause quoted in paragraph 7(vii) of the petition is incorrect, and the amendment is intended to incorporate the correct arbitration clause.

2. Mr. Makhija states that the present case is governed by a License Agreement dated 22.03.2017 executed between the parties, which contains the dispute resolution clause in Clause 12 thereof. However, the petition was filed alongwith five other petitions instituted by the same petitioner and the arbitration clause in the agreements in the five other Signature Not Verified Digitally signed ARB.P.686/2022 Page 1 of 3 By:SHITU NAGPAL Signing Date:14.09.2022 17:51:11 cases have been incorporated in this petition also by mistake.

3. For the reasons stated, the application is allowed and the amended petition filed with the application is taken on record. The Registry is directed to place the copy of the amended petition in the "Pleadings" folder.

4. The application is disposed of.

I.A. 15006/2022 in ARB.P. 686/2022

1. Six petitions, under Section 11 of the Act, filed by the petitioner were heard together on 02.08.2022 and a common order was passed. The petitioner was given an opportunity to file the agreement containing the arbitration clause, as digitally signed by the parties, and costs of Rs. 10,000/- were imposed in each petition.

2. In view of Mr. Makhija's submission that in the present case the License Agreement itself contains an arbitration clause, which is signed by both the parties, it is apparent that submissions made on the last date of hearing i.e. 02.08.2022 were misconceived.

3. For the reasons aforesaid, the application is allowed and the costs of Rs. 10,000/- imposed in the present case are waived.

4. The application is disposed of.

1. It appears from the affidavit of service that notice of the petition has been served upon the respondent at the address mentioned in the memo of parties by speed post and e-mail. However, the address mentioned in the memo of parties is neither the registered office address of the respondent-company, nor the address mentioned in the License Agreement.

2. Fresh notice be issued to the respondent on the amended petition. Dasti notice will be served upon the respondent by learned counsel for the petitioner through e-mail, and by speed post at the address mentioned in the memo of parties, the address mentioned in the License Agreement and the registered office address of the respondent as available in the database of the Ministry of Corporate Affairs, Government of India. Learned counsel for the petitioner is directed to file an affidavit of service within two weeks.

3. The respondent is at liberty to file an affidavit in response to the petition within two weeks after service positively, if it wishes to contest the appointment of an arbitrator.

4. It is made clear that if the respondent does not enter appearance despite compliance with this order, the petition may be taken up for hearing in its absence.

5. List on 10.11.2022.

PRATEEK JALAN, J SEPTEMBER 13, 2022 'vp'/ Click here to check corrigendum, if any Signature Not Verified Digitally signed ARB.P.686/2022 Page 3 of 3 By:SHITU NAGPAL Signing Date:14.09.2022 17:51:11