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Sunil Kumar Srivastava vs Essel Infra Projects & Anr on 25 August, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~8
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      ARB.P. 1187/2021 & I.A. 16145/2021

                                 SUNIL KUMAR SRIVASTAVA                                 ..... Petitioner

                                                    Through:     Mr. Mayank Rustagi, Advocate with
                                                                 Mr. Vipul Kumar Sharma, Advocate.

                                                    versus

                                 ESSEL INFRA PROJECTS & ANR.                           ..... Respondents

                                                    Through:     Ms. Ritwika Nanda, Advocate with
                                                                 Ms. Akshita Salampuria, Advocate
                                                                 for respondent Nos.1 and 2.
                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                    ORDER

% 25.08.2022 By way of the present petition under section 11 of the Arbitration & Conciliation Act 1996 ('A&C Act' for short), the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that are stated to have arisen with the respondents from Work Order dated 24.10.2018. The petition is premised on clause 28 contained in the said agreement, which contemplates reference of disputes between the parties to arbitration under the Arbitration & Conciliation Act 1996; with disputes to be settled by arbitration at New Delhi or Mumbai; and upon notice dated 27.07.2021 sent by the petitioner raising its demands and invoking arbitration.

2. Pursuant to notice issued on 16.12.2021, a short reply has been filed by respondent No.1 opposing reference to arbitration on the ground that respondent No.1 is not a signatory to the arbitration agreement on the basis of which the present petition has been filed and that the work order dated 24.10.2018 from which disputes are stated to have arisen was also issued by respondent No.2, and had no concern with respondent No.1. It is pointed-out that the arbitration clause on the basis of which the petition has been filed is only contained in the work order which was issued by respondent No.2.

3. It has further been stated in the reply that the petition is not maintainable against respondent No.1 even on the basis of the 'group company doctrine' as laid down by Hon'ble Supreme Court in various judgments on that issue.

4. In the circumstances, it is contended that while respondent No.1 opposes reference to arbitration; respondent No.2 has no objection if the disputes between the parties are referred to arbitration, as prayed for.

5. In response to the aforesaid objection raised by the respondents, counsel for the petitioner submits that disputes be referred to arbitration as between the petitioner and respondent No.2, leaving open all rights and contentions of the petitioner insofar as his allegations against respondent No.1 are concerned, to be considered by the arbitrator so appointed who may decide such issues on their own merits, in accordance with law.

6. The respondent is agreeable to this course of action.

7. Upon a conspectus of the averments contained in the petition, the document filed on record and the submissions made, this court is satisfied that there is a valid and subsisting arbitration agreement between the parties; that this court has territorial jurisdiction to entertain and decide the present petition; and further that none of the disputes sought to be raised by the petitioner appear to be ex-facie non-arbitrable.

8. Accordingly, in view of the above, the present petition is allowed and Mr. Naman Joshi, Advocate (Cellphone No. : +91 9810057280) is appointed as the learned Sole Arbitrator to adjudicate upon the disputes that have arisen between the petitioner and respondent No.2

9. The learned Sole Arbitrator may proceed with the arbitral proceedings subject to furnishing to the parties requisite disclosures as required under section 12 of the A&C Act; and in the event there is any impediment to the appointment on that count, the parties are given liberty to file an appropriate application in this court.

10. The learned Sole Arbitrator shall be entitled to fee in accordance with Fourth Schedule to the A&C Act; or as may otherwise be agreed to between the parties and the learned Sole Arbitrator.

11. Parties shall share the arbitrator's fee and arbitral costs, equally.

12. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned Sole Arbitrator on their merits, in accordance with law, including any contentions that may be raised by the petitioner as to maintainability of claims in arbitration against respondent No. 1.

13. Parties are directed to approach the learned Sole Arbitrator appointed within 10 days.

14. The petition stands disposed of in the above terms.

15. Other pending applications, if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J AUGUST 25, 2022 Ne Signature Not Verified Digitally Signed By:SUNITA RAWAT ARB.P. 1187/2021 Page 4 of 4 Signing Date:30.08.2022 12:29:38