Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Ovington Finance Pvt. Ltd vs Bindiya Nagar on 3 March, 2023

Author: Sachin Datta

Bench: Sachin Datta

                          $~7
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     ARB.P. 810/2022 and IA No.10860/2022
                                OVINGTON FINANCE PVT. LTD.              ..... Petitioner
                                             Through: Mr. Aniket Rajput, Adv.
                                             versus

                                BINDIYA NAGAR                                         ..... Respondent
                                             Through:             None.

                                CORAM:
                                HON'BLE MR. JUSTICE SACHIN DATTA
                                             ORDER

% 03.03.2023

1. Vide order dated 02.02.2023, passed in these proceedings, it was noted that an affidavit of service dated 27.01.2023 has been filed on behalf of the petitioner wherein it has been brought out that the respondent has been duly served by e-mail, Whatsapp and speed post.

2. Since there was no appearance on behalf of the respondent on 02.02.2023, the petitioner was directed to effect dasti service on the respondent. Pursuant thereto, an affidavit of service dated 25.02.2023 has been filed on behalf of the petitioner, wherein it has been stated as under:

"That as per order dated 02.02.2023 of this Hon'ble Court, service through dasti was to be effected and in compliance of that the petitioner visited the address of the Respondent on 21.02.2023, the Respondent took the copy of the Petition but did not verify and sign the notice returnable even on taking the copy of the petition.."

3. In the above circumstances, the present petition is being taken up for disposal today even though there is no appearance on the part of the respondent.

4. The present petition seeks appointment of a Sole Arbitrator to adjudicate the disputes between the parties that have arisen in the context of a „Loan Agreement‟ dated 19.11.2018, entered into between the parties. The respondent herein is a "borrower" under the said agreement. The said Loan Agreement contains an Arbitration Clause as under:

"ARTICLE-12-ARBITRATION That the Borrower and OFPL agree that agreement shall be construed in accordance with the laws in force in India and in the event that any dispute or difference, arise on any matter relating to or arising out of the present Agreement, the same shall be referred to the Sole Arbitration of an arbitrator to be appointed by OFPL whose decision shall be final and binding upon the parties. The sole Arbitrator shall conduct the arbitration proceedings at New Delhi/Delhi. It is also mutually agreed between the parties that OFPL would be entitled to invoke the present arbitration agreement even after OFPL would have recalled the Loan/terminated the contract, for any reason whatsoever. It is also agreed between the parties that arbitration proceedings would be conducted in English only and in no other language. The arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996."

5. Disputes having arisen between the parties, a notice dated 02.03.2022 was addressed on behalf of the petitioner to the respondent wherein it was stated by the petitioner that upon failure on the part of the respondent to pay the requisite outstanding amount, the petitioner shall be constrained to seek appointment of an Arbitrator in terms of the Arbitration Clause contained in the loan agreement. No response is stated to have been sent by the respondent to the said notice.

6. Prima facie, the existence of the Arbitration Clause has been established by the petitioner. Disputes having been arisen between the parties, it is incumbent on this Court to appoint an arbitrator to adjudicate the disputes between the parties.

7. Accordingly, Mr. Hardik Rupal, Advocate (Mob. No.9811316090) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.

8. The learned Sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties requisite disclosures as required under section 12 of the Arbitration & Conciliation 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.

9. The learned Sole Arbitrator shall be entitled to fee in accordance with Fourth Schedule to the Arbitration & Conciliation Act; or as may otherwise be agreed to between the parties and the learned Sole Arbitrator.

10. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned Arbitrator on their merits, in accordance with law.

11. Needless to say, nothing in this order shall be construed as an expression of opinion on the merits of the contentions of the parties.

12. The respondent would be entitled to raise preliminary objections, if any, as regards jurisdiction and/or maintainability/arbitrability of the claims in question before the concerned Arbitrator, and the same would be decided by the Arbitrator in accordance with law.

13. The present petition stands disposed of in the above terms.

14. Let a copy of this order be sent to the respondent by the Registry.

SACHIN DATTA, J MARCH 3, 2023/cl Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:06.03.2023 18:14:57