Delhi High Court - Orders
Shree Hari Educational Trust vs Fiitjee Limited on 6 July, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 366/2022
SHREE HARI EDUCATIONAL TRUST ..... Petitioner
Through: Mr. Vishisht Singh, Advocate.
versus
FIITJEE LIMITED ..... Respondent
Through: Ms. Sima Gulati & Mr. Kunal Narang,
Advocates.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 06.07.2022
1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 by the petitioner seeking appointment of an Arbitrator.
2. It is submitted in the petition that the respondent had unilaterally appointed an Arbitrator, which is illegal and bad in law. The respondent vide its Arbitration Invocate Notice dated 02nd September, 2021 has allegedly invoked the Arbitration Clause of the Exclusive Management Agreement dated 19th December, 2017, which was never signed or executed between the petitioner and the respondent.
3. Arbitration Invocate Notice dated 02nd September, 2021 was served by the respondent invoking Clause 16 of the Exclusive Management Agreement dated 19th December, 2017, which contains Clause-16 for Arbitration, which is as under:
Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:24:51"16. Arbitration-
All dispute and differences of any nature arising out of this agreement, whether during its term or after expiry thereof or prior termination shall be resolved amicably in the first instance. Unresolved differences or disputes shall be settled by sole arbitrator to be appointed by Institute. The arbitration shall be conducted accordance with the provisions of Arbitration and Conciliation Act, 1996, any statutory modification thereof and rules made there under. The award of the Arbitrator shall be final and binding on both the parties. The decision of the sole arbitrator shall be final on every matter arising hereunder. In spite of the fact that the sole arbitrator may be known to the Institute, the Trust hereby agrees to his appointment as the Arbitrator without any reservation. It is further agreed that the fact the sole arbitrator may have had occasion to deal with any matter related to this agreement either before or after its execution or has earlier expressed opinion in similar matter, shall not disqualify him from acting as Arbitrator. The arbitrator can also be an employee of the Institute. The venue of arbitration shall be Delhi/New Delhi only."
4. According to the petitioner, the respondent had approached officials of the petitioner-Trust in the year, 2017 and expressed to make donation to petitioner-Trust and more particularly to "St. Rocks Junior College of Science", which was being run by the petitioner-Trust. Accordingly, the respondent made a donation to the petitioner-Trust in the sum of Rs. 39,20,000/- on 09th January, 2018.
5. However, to the shock and surprise of the petitioner, the respondent served a Legal Notice dated 25th March, 2021 to the petitioner and demanded the donation amounts from the petitioner on false grounds. The petitioner vide its response dated 27th October, 2021 denied the execution of Exclusive Management Agreement dated 19th December, 2017 and clarified that the payments have been made towards donation to the Trust. The petitioner also Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:24:51 nominated Mr. Vinay Rathi, Advocate as an Arbitrator in order to adjudicate the alleged dispute.
6. However, on account of unilateral appointment of Mr. Deepak Paliwal, Advocate as a Sole Arbitrator by the respondent, who issued notice to the petitioner directing it to appear on the scheduled date. Hence, the petitioner has been compelled to file the present petition.
7. A prayer has, therefore, been made for appointment of an independent and impartial Arbitrator to adjudicate the dispute between the parties.
8. Learned counsel on behalf of the respondent submits that on one hand, the petitioner is denying having executed any Exclusive Management Agreement dated 19th December, 2017; on the other hand, the petitioner itself is seeking appointment of a Sole Arbitrator.
9. Further, the petitioner has challenged the appointment of the Arbitrator of the respondent. The petitioner but had himself nominated Mr. Vinay Rathi, Advocate as stated in its Response dated 27th October, 2021. It shows that the petitioner is agreeable and consented to arbitration without prejudice to the rights and contentions of the respondent.
10. It is claimed that the petitioner has wrongly denied the signing of the Exclusive Management Agreement dated 19th December, 2017.Learned counsel for the respondent further submits that the petitioner itself has agreed for appointment of the Arbitrator in its reply dated 27th October, 2021. Learned counsel on behalf of the respondent submits that an independent and impartial Arbitrator may be appointed to adjudicate the dispute between the petitioner and the respondent.
11. In light of the above-noted submissions, Ms. Shilpa Ohri, Advocate (Mobile No.9871900539) is hereby appointed as the Sole Arbitrator. As far Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:24:51 as objections in regard to the non-signing of the Exclusive Management Agreement dated 19th December, 2017 is concerned, the same may be adjudicated by the parties before the learned Sole Arbitrator.
12. This is subject to the learned Arbitrator making the necessary disclosure as required under Section 12(1) of the A & C Act, 1996 and not being ineligible under Section 12(5) of the Arbitration & Conciliation Act, 1996.
13. The petition is accordingly allowed and disposed of in the above terms.
NEENA BANSAL KRISHNA, J JULY 6, 2022 S.Sharma Signature Not Verified Digitally Signed By:NIRMLA TIWARI Signing Date:16.07.2022 15:24:51