Delhi High Court
Welspun One Logistics Parks Fund I vs Mr Mohit Verma & Ors. on 19 December, 2022
Author: Navin Chawla
Bench: Navin Chawla
Neutral Citation Number: 2022/DHC/005687
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:12.12.2022
Date of decision:19.12.2022
+ ARB.P. 792/2022 & I.A. 17174/2022
WELSPUN ONE LOGISTICS PARKS FUND I ..... Petitioner
Through: Mr.Jayant Mehta, Sr. Adv. with
Ms.Sanya Sud, Mr.Sanjeev
Sharma, Ms.Divya Joshi,
Mr.Siddharth & Ms.Ananya Pratap
Singh, Advs.
versus
MR. MOHIT VERMA & ORS. ..... Respondents
Through: Mr.Arvind Nigam, Sr. Adv. with
Mr.Sumit Kochhar, Ms.Laavanya
Kaushik, Mr.Vineet Malhotra,
Ms.Skhita, Mr.Mohit Paul,
Mr.Vishal Gohri, Mr.Rajdeep
Panda, Mr.Chitranshul Sinha,
Ms.Sanjam Chawla & Ms.Akshita
Upadhyay, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. This petition has been filed by the petitioner under Section 11(6) of
the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the
„Act') seeking appointment of an Arbitrator for adjudicating the disputes
that have arisen between the parties in relation to the „Non-Binding Term
Sheet‟ dated 26.11.2021 (hereinafter referred to as the „Term Sheet‟)
executed between the parties.
2. The Arbitration Agreement between the parties is contained in
Clause 12 of the Term Sheet, and is reproduced hereinbelow:-
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"12) Governing Law and Jurisdiction
This Term Sheet and any other
documentation with respect to any transaction
contemplated herein shall be governed by Indian
law.
All disputes arising out of and/ or due to
this Term Sheet shall be resolved by arbitration in
accordance with the Arbitration and Conciliation
Act, 1996 through a sole arbitrator to be mutually
appointed by the parties with seat and venue in
Delhi."
3. Though the agreement is titled as „Non-Binding Term Sheet‟, it
further provides as under:-
"Notwithstanding the usage of "Non-Binding" as
a suffix to the Term Sheet at certain places above,
it is agreed that the Term Sheet shall be binding
upon the parties to the following extent and clause
only during the Term,;
(i) During the Term, the Sellers and the Buyer
shall abide by the terms of this Term Sheet. Also,
the Seller shall maintain exclusivity for Lands-A,
Govt Lands/ Lease Lands for the Buyer and shall
not support or cause the transfer of Lands-B to
any third party.
(ii) Further, during the Term, both Parties shall
act in good earnest and work towards closure of
the transaction, including discussions and
finalizations of the transaction documents.
(iii) The Clauses pertaining to Confidentiality,
Expenses and Dispute Resolution, shall be binding
upon the Parties."
(Emphasis supplied)
4. Disputes having arisen between the parties, the petitioner invoked
the Arbitration Agreement vide notice dated 06.06.2022. The same was
replied to by the respondents, through their counsel, vide notice dated
05.07.2022, refusing the appointment of an Arbitrator.
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NEGI
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5. The learned senior counsel for the respondents submits that the
present petition is not maintainable inasmuch as the agreement being
relied upon itself states that it is a „Non-Binding Term Sheet‟. He submits
that even though the agreement further states that the Dispute Resolution
Clause in the said agreement would bind the parties, the same can be of
no consequence inasmuch as the other terms of the agreement remain
non-binding. He submits that a dispute cannot, therefore, be referred in a
vacuum.
6. The learned senior counsel for the respondents further submits that
the said Term Sheet is for the transfer of land in favour of the petitioner.
Placing reliance on the Securities and Exchange Board of India
(Alternative Investment Funds) Regulations, 2012 (hereinafter referred to
as the „Regulations'), he submits that in terms of Clause 17 of the
Regulations, a Category II Alternative Investment Fund is permitted to
invest only in un-listed investee companies or in the units of Category I
or other Category II Alternative Investment Funds as may be disclosed in
the placement memorandum; the fund cannot invest directly in the
purchase of land. He submits that, therefore, the consideration under the
subject Term Sheet is itself illegal and the Term Sheet is not enforceable
in law. The agreement being unenforceable, the Arbitration Agreement
contained therein would be equally void and unenforceable in law.
7. He submits that this Court, while exercising its jurisdiction under
Section 11 of the Act, would also, at least prima facie, consider the
invalidity of the underlying agreement and in case, it finds the same to be
void, refuse reference of the parties to arbitration. In support, he places
reliance on the judgment of the Supreme Court in Vidya Drolia v. Durga
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NEGI
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Trading Corporation, (2021) 2 SCC 1 and N.N. Global Mercantile (P)
Ltd. v. Indo Unique Flame Ltd., (2021) 4 SCC 379.
8. The learned senior counsel for the respondents further submits that
the petitioner itself, in its notice dated 04.04.2022, had asserted that it
would take over the responsibility of procurement of lands mentioned as
„Land A2‟ and „Lands B‟ in the Term Sheet from third parties, thereby
evidencing novation of the agreement. He submits that once the
agreement stands novated, the Arbitration Agreement contained in the
original Term Sheet would no longer bind the parties. In support, he
places reliance on Union of India v. Kishorilal Gupta & Bros., (1960) 1
SCR 493.
9. The learned senior counsel for the respondents finally submits that
even otherwise, the present petition has been filed by a non-legal entity.
He submits that the petitioner "Welspun One Logistics Parks Fund I" is
only a „Scheme‟ floated by "Welspun One Warehousing Opportunities
Fund", which is a registered Trust. The scheme itself has no legal status
and, therefore, cannot maintain the present petition. As far as the Trust is
concerned, as it‟s objects do not provide for investment in land, but only
allows investment in other companies, the Term Sheet is beyond the
objects of the Trust and is, therefore, not enforceable by the Trust. He
submits that, therefore, the petitioner has no legal standing to institute
and maintain the present petition. He further submits that even the Term
Sheet has been signed for and on behalf of the petitioner herein, which is
a non-legal entity, and not for the Trust. Therefore, the Term Sheet
cannot bind the respondents.
Signature Not Verified
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NEGI
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10. On the other hand, the learned senior counsel for the petitioner
submits that though the nomenclature of the Term Sheet is "Non
Binding", the terms thereof clearly state that the Dispute Resolution
clause and other clauses thereof will bind the parties. Whether the
agreement can be enforced or not is for the Arbitrator to consider and
adjudicate upon. He submits that it is for the Arbitrator to also adjudicate
whether the said Term Sheet is enforceable in law or not. He submits that
this Court, while exercising its powers under Section 11 of the Act,
cannot enter into this dispute and adjudicate thereon.
11. On the issue of the standing of the petitioner to institute the present
petition, he places reliance on the order dated 01.08.2022 passed on a
petition under Section 9 of the Act between the parties, being OMP (I)
(COMM) 157/2022, wherein similar plea of the respondents was rejected
by the Court. He submits that a Special Leave Petition against the said
order was dismissed by the Supreme Court vide its order dated
24.08.2022 and, therefore, the objection of the respondents in this regard
is no longer maintainable. He submits that even otherwise, the present
petition has been filed, though in the name of the Scheme, through the
Trust, that is, Welspun One Warehousing Opportunities Fund and its
Investment Manager-Welspun One Logistics Parks Fund I. He submits
that, therefore, the present petition is maintainable and the parties should
be referred to arbitration.
12. I have considered the submissions made by the learned counsels
for the parties.
13. In Vidya Drolia (Supra), the Supreme Court (Justice Sanjiv
Khanna for the Bench) answered the following issues:-
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"2. A deeper consideration of the order of
reference reveals that the issues required to be
answered relate to two aspects that are distinct
and yet interconnected, namely:
2.1 (i) meaning of non-arbitrability and when the
subject-matter of the dispute is not capable of
being resolved through arbitration.
2.2. (ii) the conundrum - "who decides" -
whether the court at the reference stage or the
Arbitral Tribunal in the arbitration proceedings
would decide the question of non-arbitrability.
2.3 The second aspect also relates to the scope
and ambit of jurisdiction of the court at the
referral stage when an objection of non-
arbitrability is raised to an application under
Section 8 or 11 of the Arbitration and Conciliation
Act, 1996 (for short, the „Arbitration Act‟)."
14. In answering the above issues, the Supreme Court held as under:-
"76. In view of the above discussion, we would
like to propound a four-fold test for determining
when the subject matter of a dispute in an
arbitration agreement is not arbitrable:
76.1. (1) When cause of action and subject matter
of the dispute relates to actions in rem, that do not
pertain to subordinate rights in personam that
arise from rights in rem.
76.2. (2) When cause of action and subject-matter
of the dispute affects third party rights; have erga
omnes effect; require centralized adjudication,
and mutual adjudication would not be appropriate
and enforceable.
76.3. (3) When cause of action and subject-matter
of the dispute relates to inalienable sovereign and
public interest functions of the State and hence
mutual adjudication would be unenforceable.
76.4. (4) When the subject-matter of the dispute is
expressly or by necessary implication non-
arbitrable as per mandatory statute(s).
76.5. These tests are not watertight
compartments; they dovetail and overlap, albeit
when applied holistically and pragmatically will
help and assist in determining and ascertaining
with great degree of certainty when as per law in
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India, a dispute or subject-matter is non-
arbitrable. Only when the answer is affirmative
that the subject-matter of the dispute would be
non-arbitrable.
76.6. However, the aforesaid principles have to
be applied with care and caution as observed in
Olympus Superstructures (P) Ltd.:
"35...Reference is made there to certain
disputes like criminal offences of a public
nature, disputes arising out of illegal
agreements and disputes relating to status,
such as divorce, which cannot be referred
to arbitration. It has, however, been held
that if in respect of facts relating to a
criminal matter, say, physical injury, if
there is a right to damages for personal
injury, then such a dispute can be referred
to arbitration (Keir v. Leeman). Similarly, it
has been held that a husband and a wife
may refer to arbitration the terms on which
they shall separate, because they can make
a valid agreement between themselves on
that matter (Soilleux v. Herbst, Wilson v.
Wilson and Cahill v. Cahill)."
15. On the issue of "Who Decides Arbitrability?", the Supreme Court
further held as under:-
"154. Discussion under the heading "Who
Decides Arbitrability?" can be crystallised as
under:
154.1. Ratio of the decision in Patel Engg. Ltd. on
the scope of judicial review by the court while
deciding an application under Sections 8 or 11 of
the Arbitration Act, post the amendments by Act 3
of 2016 (with retrospective effect from 23-10-
2015) and even post the amendments vide Act 33
of 2019 (with effect from 9-8-2019), is no longer
applicable.
154.2. Scope of judicial review and jurisdiction of
the court under Sections 8 and 11 of the
Arbitration Act is identical but extremely limited
and restricted.
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154.3. The general rule and principle, in view of
the legislative mandate clear from Act 3 of 2016
and Act 33 of 2019, and the principle of
severability and competence-competence, is that
the Arbitral Tribunal is the preferred first
authority to determine and decide all questions of
non-arbitrability. The court has been conferred
power of "second look" on aspects of non-
arbitrability post the award in terms of sub-
clauses (i), (ii) or (iv) of Section 34(2)(a) or sub-
clause (i) of Section 34(2)(b) of the Arbitration
Act.
154.4. Rarely as a demurrer the court may
interfere at Section 8 or 11 stage when it is
manifestly and ex facie certain that the arbitration
agreement is non-existent, invalid or the disputes
are non-arbitrable, though the nature and facet of
non-arbitrability would, to some extent, determine
the level and nature of judicial scrutiny. The
restricted and limited review is to check and
protect parties from being forced to arbitrate
when the matter is demonstrably "non-arbitrable"
and to cut off the deadwood. The court by default
would refer the matter when contentions relating
to non-arbitrability are plainly arguable; when
consideration in summary proceedings would be
insufficient and inconclusive; when facts are
contested; when the party opposing arbitration
adopts delaying tactics or impairs conduct of
arbitration proceedings. This is not the stage for
the court to enter into a mini trial or elaborate
review so as to usurp the jurisdiction of the
Arbitral Tribunal but to affirm and uphold
integrity and efficacy of arbitration as an
alternative dispute resolution mechanism."
16. Justice N.V. Ramana (as he then was) in a Supplementary Opinion,
held as under:-
"244. Before we part, the conclusions reached,
with respect to Question 1, are:
244.1. Sections 8 and 11 of the Act have the same
ambit with respect to judicial interference.
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244.2. Usually, subject-matter arbitrability cannot
be decided at the stage of Section 8 or 11 of the
Act, unless it is a clear case of deadwood.
244.3. The court, under Sections 8 and 11, has to
refer a matter to arbitration or to appoint an
arbitrator, as the case may be, unless a party has
established a prima facie (summary findings) case
of non-existence of valid arbitration agreement,
by summarily portraying a strong case that he is
entitled to such a finding.
244.4. The court should refer a matter if the
validity of the arbitration agreement cannot be
determined on a prima facie basis, as laid down
above i.e. "when in doubt, do refer".
244.5. The scope of the court to examine the
prima facie validity of an arbitration agreement
includes only:
244.5.1. Whether the arbitration agreement was in
writing? Or
244.5.2. Whether the arbitration agreement was
contained in exchange of letters,
telecommunication, etc.?
244.5.3. Whether the core contractual ingredients
qua the arbitration agreement were fulfilled?
244.5.4. On rare occasions, whether the subject-
matter of dispute is arbitrable?"
17. In N.N. Global (Supra), the doctrine of separability of the
Arbitration Agreement was emphasised as under:-
"4.2. The doctrine of separability of the
arbitration agreement connotes that the invalidity,
ineffectiveness, or termination of the substantive
commercial contract, would not affect the validity
of the arbitration agreement, except if the
arbitration agreement itself is directly impeached
on the ground that the arbitration agreement is
void ab initio.
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4.10. The doctrine of kompetenz-kompetenz is
based on the premise that the arbitration
agreement is separate and independent from the
substantive underlying contract in which it is
embedded. Equally, an arbitration agreement
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exists and can be acted upon irrespective of
whether the main substantive contract is valid or
not."
18. From the reading of the above judgments, it would be apparent that
the Arbitration Agreement is a separate agreement distinct from the main
contract, even though it may appear as one of the Clauses of the main
agreement. In judging whether the parties can be referred to arbitration or
not, the Court shall carry out only a prima facie study to determine if the
Arbitration Agreement itself, and as a distinct to the main agreement, has
been shown to be void or voidable. It is only when the above is shown,
that the Court can refuse to refer the parties to arbitration. Even for
determining the same, the Court is not to carry out extensive study of
facts. Scope of judicial review and jurisdiction of the Court under Section
11 of the Act is extremely restricted and limited. The Arbitral Tribunal is
the preferred first authority to determine and decide all questions of non-
arbitrability. The Court, while exercising powers under Section 11 of the
Act, can refuse to refer the parties to arbitration only where "it is
manifestly and ex facie certain that the arbitration agreement is non-
existent, invalid or the disputes are non-arbitrable, though the nature and
facet of non-arbitrability would, to some extent, determine the level and
nature of judicial scrutiny." The Court, by default, would refer the matter
to arbitration when contentions relating to non-arbitrability are plainly
arguable. The Court must act on the principle "when in doubt, do refer."
19. Applying the above yardsticks and principles to the facts of the
present case, though the title of the Term Sheet is "Non-Binding Term
Sheet", the Arbitration Agreement is specifically made binding on the
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NEGI
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parties. Whether the petitioner would succeed in such arbitration
proceedings or not for want of alleged non-enforceability of the other
covenants of the Term Sheets, is not to be considered by this Court at this
stage. This would be a matter to be considered by the Arbitral Tribunal.
As far as this Court is concerned, the Term Sheet expressly states that
notwithstanding its title, the Dispute Resolution Clause is binding on the
parties.
20. Similarly, whether the other covenants of the Term Sheet are
enforceable or illegal/void in terms of the Regulations, also does not at
least prima facie affect the Arbitration Agreement, which, as observed
hereinabove, is a severable contract between the parties. Such alleged
illegality, at least prima facie, does not tag with the arbitration
agreement. In any case, to reach a conclusion one way or the other, this
Court would have to conduct a detailed examination of not only the Term
Sheet, but also of the Regulations, the Trust Deed, the terms of the
Scheme, etcetera. The Supreme Court in Vidya Drolia (supra) expressly
warns the Courts not to fall in this trap.
21. On the locus of the petitioner to file the present petition, the
petitioner is described in the Term Sheet as under:-
"WELSPUN ONE LOGISTICS PARKS FUND I,
a private trust registered with the Securities and
Exchange Board of India as a Category II
Alternative Investment Fund under the Securities
and Exchange Board of India (Alternative
Investment Fund) Regulations, 2012, having its
place of business at Welspun House, 3rd Floor,
Kamla Mills Compound, Lower Parel Mumbai,
Mumbai City, MH-400013 represented by
authorised signatory, Mr. Anshul Singhal
authorized vide resolution dated 21st July, 2020
(hereinafter referred to as the "Buyer", which
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expression shall mean and include their respective
successors and assigns)."
22. Taking into account the above description, a Coordinate Bench of
this Court, in its judgment dated 01.08.2022, passed in OMP (I) (COMM)
157/2022, a petition under Section 9 of the Act filed by the petitioner
against the respondents herein, has held as under:-
"16. The signatory to the Term Sheet is one Mr.
Anshul Singhal, who has signed the Term Sheet as
'authorized signatory' on behalf of Welspun One
Logistics Parks Fund I. Although the text of the
Term Sheet does refer to Welspun One Logistics
Parks Fund I as a 'private registered trust',
clearly that is not the case. But what is to be
considered, at this stage, is the effect of such
misdescription on the maintainability of the
present petition, without delving any further into
the merits of it.
17. What is notable is that the memorandum of
parties/cause-title of the present petition reads:
"Welspun One Logistics Parks Fund I
Through its Investment Manager Welspun
One Logistics Parks Pvt. Limited Having
office at:
Whereby, it is seen that Welspun One
Logistics Parks Private Limited, acting as the
Investment Manager of Welspun One Logistics
Park Fund I is named as the petitioner, even
though the reference to the Welspun One Logistics
Parks Fund I appears earlier in the description.
Just because the name of the scheme, i.e. Welspun
One Logistics Park Fund I comes earlier in the
memo of parties/cause title, it cannot be said that
Welspun One Logistics Parks Private Limited,
which is the Investment Manager of the Welspun
One Logistics Parks Fund I, is not the entity that
has filed the present petition.
xxxx
19. In the opinion of this court, limited to the
aspect of maintainability of the present petition at
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the instance of the petitioner, as described in the
memo of parties, the answer to the question posed
is embedded in Recital 'G' read with clauses 2.3,
4.2.22 and 4.2.24 of the Investment Management
Agreement.
20. To clear the confusion as to the connection
between Welspun One Logistics Parks Pvt.
Limited with the Term Sheet, it is observed that
though there is clearly some ambiguity in the
description of the contracting entity on the first
page of the Term Sheet, the term "Buyer" has been
defined more clearly in clause 2 of the Term
Sheet in the following words :
"Welspun One Logistics Parks Fund I
("Fund") is the first scheme of Welspun
One Warehousing Opportunities Fund,
which is a category II alternate investment
fund registered with SEBI under the
provisions of SEBI (Alternate Investment
Funds) Regulations 2012. The Buyer
herein is the investment manager of the
Fund and is accordingly and duly
authorised to enter into this Term Sheet on
behalf of the Fund. "
(emphasis supplied)
xxxx
22. On a combined reading of the foregoing
provisions of the Trust Deed and the Investment
Management Agreement, and the description of
the petitioner in the Memo of Parties, the
following inferences arise:
i) The petitioner before this court is
Welspun One Logistics Parks Private
Limited, which is the Investment Manager
of the Welspun One Warehousing
Opportunities Fund, of which Welspun One
Logistics Parks Fund I is one of the
'schemes'. The petitioner Welspun One
Logistics Parks Pvt. Limited is acting
through its authorised representative Mr
Amresh Passi;
ii) Clause 4.2.24 of the Investment
Management Agreement authorizes
Welspun One Logistics Parks Private
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Limited, as Investment Manager of Welspun
One Warehousing Opportunities Fund and
of any schemes floated by the fund, to
institute and conduct legal proceedings for
or on behalf of, or in the name of, the fund,
and its schemes-, and to perform other
consequential and ancillary acts such as
compromising, compounding or
abandoning such proceedings; and
iii) The Term Sheet has been signed by an
authorised signatory of the Investment
Manager of Welspun One Warehousing
Opportunities Fund, which is the fund set-
up by the Trust and recognised under the
AIF Regulations.
23. What strikes this court as peculiar, is that the
respondents - all 11 of them - have taken the stand
that they have signed the Term Sheet containing
covenants with financial implications and
obligations running into several crores, with 'a
non-entity' or a 'phantom entity', which the
respondents neither acknowledge nor recognize
today. In doing so, the respondents completely
ignore the Investment Management Agreement
and the Investment Manager, which (latter) is the
entity that the respondents have dealt-with.
24. While there is no qualm that there is some
element of misdescription of parties to an extent,
but in law, it cannot be said that the respondents
did not undertake any transaction at all with the
petitioner. To hold that the petitioner is a 'non-
entity' would imply that the signatory to Term
Sheet dated 26.11.2021 would have no recourse to
any legal remedy whatsoever. This court is not
willing to countenance such position.
25. In the above view of the matter, it is not
necessary, at least at this stage, to decide whether
a scheme is a 'legal entity' or not.
26. As a sequitur to the above discussion, the
answer to the preliminary objection as to whether
the petitioner in the present petition is an 'entity'
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that can maintain the present proceedings, is in
the affirmative."
23. The above-said order was challenged by the respondents by way of
a Special Leave Petition, being SLP(C) No. 14199/2022. The same has
been dismissed by the Supreme Court by its order dated 24.08.2022,
observing as under:-
"1. Having heard learned Senior Advocates
appearing for the parties and on carefully
perusing the material placed on record, we see no
reason to interfere with the impugned order(s)
passed by the High Court.
2. The Special Leave Petition are,
accordingly, dismissed.
3. However, the petitioners are at liberty to
raise all the pleas available to them on facts and
law before the High Court.
4. Consequent upon dismissal of the Special
Leave Petition, the pending interlocutory
application(s) also stand disposed of."
24. I see no reason to revisit the findings given by the Coordinate
Bench of this Court in the above referred judgment dated 01.08.2022.
The liberty granted by the Supreme Court is not to reopen the issue that
already stands concluded.
25. On the question of novation of the agreement, the relevant
quotation from the notice dated 04.04.2022 of the petitioner is as under:-
"10. Pursuant thereto, when it was again found by
our Client that no progress was being made
by you, our Client addressed email dated 24
February 2022 to you, reminding you of your
obligations under the Term Sheet, and vide
the said email, also conveyed its willingness
to meet at Mumbai on 28 February 2022.
Accordingly, the Parties held meetings on 28
February 2022 and on 10 March 2022,
wherein the Parties- including you the
Sellers- once again reiterated the commitment
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to adhere to the terms of the Term Sheet and
emphasized that the sale of Lands A1 and A2
shall be done at the earliest, and in any case
within four ( 4) weeks. It was agreed by all
parties that the consideration for the Lands-A
1 shall be Rs. 1.42 Crores/ Acre of land, and
there shall be no deviation from the Term
Sheet in this respect. Importantly, despite the
fact that the Term Sheet provided that you,
the Addressees would be responsible for
procurement of Lands-A2 and Lands-B, you
requested us to take over the responsibility of
buying Lands-A2 and Lands-B as well,
expressing your inability and failure to be
able to do the same till date, which
contradicted the fail-safe position agreed in
the Term Sheet. Regardless, our Client having
no other option, was constrained to agree to
take on the said responsibility of procurement
of Lands A2 and Lands B in the interest of
expediency, for no additional consideration,
and only based on your assurance and
undertaking that you would cooperate and
transfer Lands A-1 and Lands A2
simultaneously to us within a period of four
(4) weeks. It was further agreed by the Parties
that the negotiations between our Client and
the owners of Lands A2 shall not be interfered
by you, the Addressees, in any manner. It is
important to point out that despite the fact
that the obligations to procure Lands A2 and
Lands B was entirely within the scope of your
obligations and should have been conducted
at your risk and cost, our Client agreed to do
this at no extra compensation, only in the
interest of expediency and to fructify the Term
Sheet. That alarmingly, despite the said
understanding, you continued to make
demands from our Client as regards
additional compensation and various other
issues which was done vide your email of 12
March 2022. Again, our Client feeling
constrained and having no other option,
responded vide email dated 19 March 2022,
agreeing to your various
demand(s)/Condition(s) in the interest of
expediency. Thus, our Client was hopeful that
Signature Not Verified
Digitally Signed By:RENUKA
NEGI
Signing Date:20.12.2022ARB.P. 792/2022 Page 16 of 17
16:46:59
Neutral Citation Number: 2022/DHC/005687
in view of the renewed understanding reached
vide the various meetings and as reflected in
the email correspondence, you would finally
comply with your obligations under the Term
Sheet."
26. At least, prima facie, the submission of the Term Sheet having
been novated and the Arbitration Agreement having been done away
with, cannot be sustained on the reading of the above assertion of the
petitioner in its notice dated 04.04.2022. In any case, this would be a
matter to be considered by the Arbitral Tribunal.
27. In view of the above, I see no impediment in appointing a Sole
Arbitrator for adjudicating the disputes that have arisen between the
parties in relation to the above-mentioned Term Sheet.
28. Accordingly, I appoint Hon‟ble Mr.Justice Dipak Misra (Former
Chief Justice of India) (Address: 97, Ground Floor, Sukhdev Vihar, New
Delhi-110025, Mobile No: 9560333111) as a Sole Arbitrator for
adjudicating the disputes that have arisen between the parties in relation
to the Term Sheet. The Sole Arbitrator shall give a disclosure in terms of
Section 12 of the Act before proceeding with the reference. The fee of the
Arbitrator shall be governed by Schedule IV of the Act.
29. Needless to state that all objections of the respondents shall be
considered on merit by the learned Sole Arbitrator, without being, in any
manner, influenced by any observations made in the present order.
NAVIN CHAWLA, J.
DECEMBER 19, 2022/Ais/s Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:20.12.2022ARB.P. 792/2022 Page 17 of 17 16:46:59