Delhi High Court - Orders
Bml Advertising Limited Through Its ... vs M/S Ayaan Foods & Ors on 22 August, 2022
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 378/2021
BML ADVERTISING LIMITED THROUGH ITS AUTHORIZED
REPRESENTATIVE ..... Petitioner
Through: Ms. Zoya Mehta with Ms. Siddhi
Mittal, Advocates.
versus
M/S AYAAN FOODS & ORS. ..... Respondents
Through: Mr. Inder Singh Adhikari, Advocate
via video conferencing.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 22.08.2022 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 Retainership Agreement dated 01.10.2019.
2. At the outset it is noticed that vide order dated 12.07.2022, amended memo of parties was directed to be taken on record; which is now on file.
3. As per the amended memo of parties, there is now only one respondent in the matter viz. M/s Ayaan Foods, which is stated to be a partnership firm, which has been impleaded through its partners Mr. Puneet Gupta and Mr. Kishan Singh.
Signature Not Verified Digitally Signed By:NEERAJ Signing Date:26.08.2022 ARB.P. 378/2021 Page 1 of 5 12:57:524. Pursuant to notice issued in the matter on 10.03.2021,the then four respondents had filed two separate counter-affidavits, one dated 25.02.2022 on behalf of respondents Nos. 1, 2 and 4 (namely the partnership firm and its two partners); and the second counter affidavit dated 24.02.2022 on behalf of respondent No. 3, which was a private limited company, which has since been deleted from the array of party-respondents.
5. Drawing attention to the counter-affidavit filed on behalf of respondents Nos. 1, 2 and 4, Mr. Inder Singh Adhikari, learned counsel for the respondent submits that the principal objection to the present petition is that the alleged retainership agreement, from which disputes are stated to have arisen, was signed by one Mr. Ravinder Singh, who was neither a partner nor had any authority to sign the said agreement on behalf of the partnership firm. It is accordingly contended that neither the agreement, nor the arbitration clause contained in it, is binding on the partnership firm M/s Ayaan Foods or on its partners. In view of the above it is argued that the present petition " ... suffers from Non-Joinder and Mis-Joinder of Parties ..."and is liable to be rejected.
6. It is further submitted on behalf of the respondent that since the agreement was signed by Mr. Ravinder Singh, the petitioner should approach the said person for redressal of any grievance; and that the partners reserve their right to take appropriate action against Mr. Ravinder Singh for signing the alleged agreement without having any authority to do so.
Signature Not Verified Digitally Signed By:NEERAJ Signing Date:26.08.2022 ARB.P. 378/2021 Page 2 of 5 12:57:527. Apart therefrom, certain objections have also been taken in the counter-affidavit insofar as the private limited company, that was originally impleaded as a party, is concerned. However, since the said private limited company has now been deleted from the array of party-respondents, such objections are irrelevant and immaterial to the consideration of the present petition.
8. Upon a consideration of the objections taken in the counter-affidavit, what is apparent is that the respondent does not dispute that the Retainership Agreement dated 01.10.2019 was signed by Mr. Ravinder Singh, although the objection is that Mr. Ravinder Singh is neither a partner of the respondent nor was he authorised to sign the agreement on behalf of the partnership firm.A perusal of the petition also shows that though signed by Mr. Ravinder Singh, the agreement bears the seal/stamp which indicates that Mr. Ravinder Singh had signed for "M/s Ayaan Foods" as its "Authorised Signatory".
9. In the circumstances, whether or not Mr. Ravinder Singh was authorised by the partnership firm to sign the agreement is a question which requires appreciation of evidence and would be a decision on the merits of the issue, which is not the remit of the court in the present petition under section 11 of the A&C Act and must be left for decision to the arbitrator to be appointed in the matter.
10. A perusal of the agreement shows that by way thereof, the petitioner was engaged to render social media marketing services for the partnership firm M/s Ayaan foods; and the disputes relate to alleged non-payment of dues by the firm for services stated to have been rendered by the petitioner.
Signature Not Verified Digitally Signed By:NEERAJ Signing Date:26.08.2022 ARB.P. 378/2021 Page 3 of 5 12:57:5211. What is clear however, is that the agreement contains clause 16, which comprises the arbitration agreement between the parties; and also clause 18, which subjects the agreement to the jurisdiction of the 'State of Delhi' and also specifies Delhi as the 'venue' for legal proceedings.
12. As per the record, the petitioner invoked arbitration vidé Notice dated 25.01.2021; to which the respondent sent no reply.
13. Upon a conspectus of the averments contained in the petition, the stand taken by the respondent 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 also that the disputes that are stated to have arisen between the parties as set-out inter-alia in invocation notice dated 25.01.2021 do not appear ex-facie to be non-arbitrable.
14. Accordingly, the present petition is allowed and Mr. Siddhant Nath, Advocate (Cellphone No. : +91 9910870397) is appointed as the learned Sole Arbitrator to adjudicate upon the disputes between the parties.
15. 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.
Signature Not Verified Digitally Signed By:NEERAJ Signing Date:26.08.2022 ARB.P. 378/2021 Page 4 of 5 12:57:5216. 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.
17. Parties shall share the arbitrator's fee and arbitral costs, equally.
18. 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.
19. Parties are directed to approach the learned Sole Arbitrator appointed within 10 days.
20. The petition stands disposed of in the above terms.
21. Other pending applications, if any, also stand disposed of.
ANUP JAIRAM BHAMBHANI, J AUGUST 22, 2022 ds Signature Not Verified Digitally Signed By:NEERAJ Signing Date:26.08.2022 ARB.P. 378/2021 Page 5 of 5 12:57:52