Delhi High Court - Orders
Food Corporation Of India vs Mbr Silos Private Limited & Anr on 10 January, 2024
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~39 & 40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 2/2024, I.As. 605/2024 & 606/2024
FOOD CORPORATION OF INDIA ..... Petitioner
Through: Mr. Ajit Pudussery, Adv. (M.
9810164651)
versus
MBR SILOS PRIVATE LIMITED & ANR. ..... Respondents
Through: Mr. Vaibhav Agnihotri & Mr.
Harshit Kiran Advs for R-1 (M.
7669700082)
Mr. Gaganmeet Singh Sachdeva
along with Mr. Ashish Singh, Advs.
for R2 (ICADR)
40 AND
+ O.M.P. (T) (COMM.) 3/2024, I.As. 607/2024 & 608/2024
FOOD CORPORATION OF INDIA ..... Petitioner
Through: Mr. Ajit Pudussery, Adv.
versus
MRB PATIALA STORAGE PRIVATE
LIMITED & ANR. ..... Respondents
Through: Mr. Vaibhav Agnihotri, & Mr.
Harshit Kiran, Advs (M.
7669700082)
Mr. Gaganmeet Singh Sachdeva
alongwith Mr. Ashish Singh, Advs.
for R2 (ICADR)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 10.01.2024
1. This hearing has been done through hybrid mode.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 03:42:05 I.A.606/2024 (for exemption) in O.M.P. (T) (COMM.) 2/2024 I.A.608/2024 (for exemption) in O.M.P. (T) (COMM.) 3/2024
2. Allowed, subject to all just exceptions. Applications are disposed of. O.M.P. (T) (COMM.) 2/2024 & I.A. 605/2024 (Stay) O.M.P. (T) (COMM.) 3/2024& I.A. 607/2024 (Stay)
3. The present petition is filed under Section 11(4) of the Arbitration and Conciliation Act, 1996 (hereinafter, 'the Act'). The issue raised in the present case is whether the third arbitrator could have been appointed by the International Centre for Alternate Disputes Resolution (hereinafter, 'ICADR'), without the consent and knowledge of the Petitioner.
4. The grievance of the Petitioner is that the arbitration clause in the concession agreement dated 17th March, 2017 entered into between the parties, states that the rules of the ICADR or any other organization as may be agreed between the parties would govern the arbitration. The Arbitration clause is extracted below:
25.3 Arbitration 25.3.1 Any dispute is not resolved by mediation, as provided in clause 25.2, shall be resolved in arbitration by a board of Arbitrators appointed in accordance with Clause 25.3.2. the arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the "Rules') or such other rules as may be mutually agreed by the parties, and shall be subject to the provisions of the Arbitration & Conciliation Act, 1996 (No.26 of 1996) The venue of such arbitration shall be English.
25.3.2- There shall be a Board of three Arbitrators, of whom each party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected, and in the event of disagreement between the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 03:42:05 two arbitrators, the appointment shall be made in accordance with the Rules.
5. It is submitted by Mr. Pudussery, ld. Counsel that there was no agreement only for the ICADR Rules to apply. In addition, as per clause 25.3.2, it is his submission that there was no disagreement between the two nominee arbitrators.
6. The two issues which have been raised would require consideration as both the clauses and the correspondence would have to be perused by the Court in order to determine:
i. Whether the ICADR is an agreed organization or institution in the arbitration clause and;
ii. Whether there was a disagreement between the two nominee arbitrators or not.
7. Another issue which arises in the opinion of this Court is whether upon receiving a letter for appointment of a third arbitrator on behalf of Respondent No.1, whether ICADR has a duty to call upon the Petitioner's stand in this regard.
8. According to ld. Counsel for the Petitioner, the 30 days time limit would also not apply in view of Section 11(6) of the Act.
9. Mr. Vaibhav Agnihotri, ld. Counsel submits that the arbitration clause itself provides for 30 days for appointment of the third arbitrator/ presiding arbitrator
10. Issue notice. Mr. Vaibhav Agnihotri, & Mr. Gaganmeet Singh Sachdeva, ld. Counsel accepts notice for Respondent Nos. 1- MBR Silos Private Limited and Respondent No. 2-ICADR respectively.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 03:42:06
11. Ld. counsel for the Respondents shall seek instructions or file a short affidavit in this regard within two weeks. Rejoinder, thereto, within two weeks.
12. List on 12th February, 2024.
13. In the meantime, the parties shall not proceed with the arbitration proceedings.
PRATHIBA M. SINGH, J.
JANURARY 10, 2024 dj/bh This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/01/2024 at 03:42:06