Delhi High Court - Orders
Sonali Associates Private Limited vs Mist Avenue Private Limited & Ors on 26 March, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 555/2020
SONALI ASSOCIATES PRIVATE LIMITED ..... Petitioner
Through: Mr. Ankur Sudan, Advocate.
versus
MIST AVENUE PRIVATE LIMITED & ORS. ..... Respondents
Through: Ms. Aparna Gupta, Advocate for R-1.
Mr. Karan Grover, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 26.03.2021
1. The present petition under Section 11 (6) of the Arbitration and Conciliation Act, 1996, seeks appointment of a Sole Arbitrator. The Arbitration Clause [Clause 20] is contained in four separate 'IT & ITES Office Space(s) Buyer's Agreement' dated 17th July, 2013 regarding allotment of units nos. 419, 421, 423 and 425 in a project known as 'Festival City' being developed by Respondent No. 1.
2. The Arbitration Agreement is contained in Clause 20 of the said Agreements, which reads as under: -
"20. JURISDICTION: This Agreement shall be subject to the exclusive jurisdiction of the Courts at New Delhi. All or any disputes arising out or touching upon or in relation to the terms of this application and/ or IT & IT enabled Services OFFICE Space (s) / Unit
(s)(s) Buyers Agreement including the interpretation and validity of the terms thereof and the respective rights and obligations of the parties shall be settled amicably by mutual discussion failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Signature Not Verified Digitally Signed ARB.P. 555/2020 Page 1 of 3 By:SAPNA SETHI Signing Date:06.04.2021 11:56 Act, 1996 or any statutory amendments/ modifications thereof for the time being in force. The arbitration proceedings shall be held at company's corporate / registered / site OFFICE by a sole arbitrator who shall be appointed by the company, during the course of arbitration if any eventuality takes place, company at its sole discretion may reappoint another sole arbitrator."
3. Ms. Aparna Gupta, learned counsel for Respondent No. 1 does not dispute the existence of the Arbitration Agreement, however, she submits that the Petitioner should have filed separate petitions with respect to the four Agreements. She further submits that if the petition were to be allowed, the objection of Respondent No. 1 regarding the registration of the Arbitration Agreements may be considered as a preliminary issue before the learned Arbitrator.
4. Mr. Karan Grover, learned counsel for Respondent No. 2 submits that in absence of an Arbitration Agreement between the parties and Respondent No. 2, they cannot be referred to arbitration. In this regard, the attention of the Court is drawn to an e-mail communication dated 1st April, 2020 sent by Respondent No. 1 to demonstrate that there exists an Arbitration Agreement between the parties [Petitioner and Respondent No. 2]. The e-mail communication provides that, the project- 'Festival City', which was being constructed by 'Mist Avenue Private Limited', has been taken over by 'Mist Direct Sales Private Limited'.
5. The Court has considered the contentions advanced by the parties. There is no document i.e. executed between the Petitioner and Respondent No.2 that has been shown to the Court, to establish that there exists an Signature Not Verified Digitally Signed ARB.P. 555/2020 Page 2 of 3 By:SAPNA SETHI Signing Date:06.04.2021 11:56 Arbitration Agreement between them. Thus, in absence of such an Arbitration Agreement, Respondent No. 2 cannot be referred to Arbitration.
6. Vis-à-vis the contention of Respondent No. 1 regarding the registration of Arbitration Agreement, the Court can only observe that, the same will be examined by the learned Arbitrator, as and when raised, on its own merits.
7. Accordingly, the present petition is allowed qua Respondent No. 1. Mr. O.P. Saini (Retd.) former District Judge [Contact No: +91 9717196857] is appointed as the common Sole Arbitrator in respect of the disputes arising under all the four separate Agreements dated 17th July, 2013 between the Petitioner and Respondent No. 1.
8. The parties are directed to appear before the learned Sole Arbitrator as and when notified. This is subject to the Arbitrator making the necessary disclosure under Section 12(1) of the Act and not being ineligible under Section 12(5) of the Act.
9. The learned Arbitrator will be paid his fee in terms of the provisions of the Fourth Schedule appended to the Act.
10. In view of the above, the present petition is disposed of.
SANJEEV NARULA, J MARCH 26, 2021/nk Signature Not Verified Digitally Signed ARB.P. 555/2020 Page 3 of 3 By:SAPNA SETHI Signing Date:06.04.2021 11:56