Delhi High Court - Orders
Institute Of Human Behaviour And Allied ... vs M/S Royal Cuisine on 25 May, 2022
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 189/2021
INSTITUTE OF HUMAN BEHAVIOUR AND ALLIED SCIENCE
..... Petitioner
Through: Mr. Tushar Sannu, Standing Counsel
for IHBAS with Ms. Priyansha Sinha,
Advocate.
Versus
M/S ROYAL CUISINE ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 25.05.2022 I.A. 8255/2022 By way of the present application filed by the petitioner, it is prayed that the respondent be treated as served with the notice in the petition; and that the prayer made for appointment of an arbitrator be allowed.
2. Mr. Tushar Sannu, learned counsel for the petitioner submits that notice of this petition was issued on 04.04.2021, returnable 06.05.2021. Counsel submits that ever since, the petitioner has been taking steps for service of the respondent by various means but the respondent is persistently evading service and/or refusing to acknowledge service upon it.
3. Attention is drawn in this regard, to report dated 30.04.2022 of the process server in relation to notice dated 03.03.2022 issued by the Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.05.2022 Arb. P. 189/2021 Page 1 of 5 11:26:47 Registry in the matter; a perusal of which shows that though a restaurant in the name and style of 'Pind Balluchi' was admittedly operating from the premises at 410, Karkardooma Village, opposite Karkardooma Metro Station, Delhi for 7-8 years, the person who the process server met at the premises disclaimed knowledge of any restaurant/business in the name and style of 'M/s Royal Cuisine' having ever existed there and thereby declined service.
4. Mr. Sannu submits that information available in the public domain, inter-alia on the internet, shows that there is identity as between the businesses run as Pind Balluchi Restaurant and M/s Royal Cuisine; and that a business known as 'Balluchi's (The Royal Cuisine) Restaurant' is operating from 410, near Metro Station Karkardooma, Vikas Marg, Delhi. Certain screenshots and photographs as also a copy of the Facebook Rage of the respondent M/s Royal Cuisine indicating the same address have been annexed with the application.
5. It is further pointed-out that though service through the process server is consistently declined or disclaimed, service has in any case been effected upon the respondent through a representative from counsel's office on 01.05.2022 as evidenced by affidavit of service dated 10.05.2022 filed on behalf of the petitioner. In addition, service is also stated to have been effected by e-mail on the ID [email protected] by petitioner's counsel from his e-mail ID and proof of service through e-mail has also been annexed with the affidavit of service.
6. Counsel points-out that the respondent is in fact continuing to run the cafeteria in the petitioner's institution even today, while at the same Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.05.2022 Arb. P. 189/2021 Page 2 of 5 11:26:47 time disclaiming service of notice at its official address and omitting to appear in the matter.
7. Mr. Sannu points-out that fresh notice in the matter was last issued vide order dated 22.02.2022 and the matter was re-notified for 12.05.2022; and accordingly the service effected on 01.05.2022, as evidenced by the affidavit of service dated 10.05.2022, be taken as proper service.
8. For the record, no one appeared on behalf of the respondent on 12.05.2022; on which date the matter was simply re-notified for 04.08.2022 in view of a Full Court Reference scheduled on that date.
9. In view of the averments contained in the application, as also borne-
out by the documents annexed with it, as also the affidavit of service filed on behalf of the petitioner, this court is satisfied that respondent has been duly and sufficiently served notice of the present petition.
10. In light of the above, service of notice upon the respondent is taken to be complete; and the respondent is proceeded ex-parte.
11. Application stands disposed of.
Arb. P.189/202112. By way of the present petition under section 11(6) of the Arbitration & Conciliation Act 1996 ('A&C Act') the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that are stated to have been arisen with the respondent from Agreement dated 06.01.2017, whereby the respondent was granted a licence for running cafeteria service at the petitioner institution. The disputes relate essentially to the respondent's failure to pay the monthly licence fee, Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.05.2022 Arb. P. 189/2021 Page 3 of 5 11:26:47 water and electricity charges and other amounts under the said agreement.
13. The petitioner consequently raised the disputes and demands upon the respondent vide show causes notices dated 18.07.2018, 25.05.2019, 11.11.2019, 13.11.2019 and 31.05.2019; followed by an invocation notice dated 10.11.2020 invoking the arbitral mechanism; but to no avail.
14. Attention is drawn to clauses25.1 and 39.1 of the terms contained in Tender Enquiry dated 05.09.2016, which contains the arbitration agreement between the parties and contemplate the appointment of sole arbitrator for the purpose. Attention is also invited to clause 26.1, whereby the parties have agreed that the agreement shall be subject to the jurisdiction of the courts at Delhi. Additionally clauses 77 and 80 of the agreement also stipulate that courts within Delhi shall have jurisdiction over the transaction comprised in the agreement, to the exclusion of all other courts.
15. As recorded above, the respondent has not entered appearance in the matter, nor has any reply been filed to the petition.
16. Upon a conspectus of the averments contained in the petition and the submission 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 that prima-facie none of the disputes sought to be raised by the petitioner against the respondent appear to be non-arbitrable.
17. In view of the above, and as requested by counsel for the petitioner, the disputes between the parties are referred to arbitration under the Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.05.2022 Arb. P. 189/2021 Page 4 of 5 11:26:47 aegis of the Delhi International Arbitration Centre (DIAC), New Delhi, with a request to the Director, DIAC to appoint an appropriate Arbitrator in the matter, subject to such arbitration fee, arbitration costs and other terms and conditions as may be applicable. Requisite disclosure under section 12 of the A&C Act be also obtained by the DIAC as per its rules.
18. The petitioner is directed to approach the DIAC for initiation of arbitration proceedings within 10 days.
19. Petition stands disposed of in the above terms.
20. Other pending applications, if any, also stand disposed of.
21. The next date of 04.08.2022 given in the matter, stands cancelled.
ANUP JAIRAM BHAMBHANI, J MAY 25, 2022 Ne Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:30.05.2022 Arb. P. 189/2021 Page 5 of 5 11:26:47