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Rajeev Enterprises vs Acc Limited on 29 August, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

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                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          +      ARB.P. 1246/2021

                                 RAJEEV ENTERPRISES                                      ..... Petitioner

                                                    Through:     Mr. Jatin Sharma & Mr. Jitendra
                                                                 Prasad, Advocates.

                                                    versus

                                 ACC LIMITED                                           ..... Respondent
                                                    Through:     Mr. Rajendra Beniwal, Advocate.

                                 CORAM:
                                 HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                    ORDER

% 29.08.2022 By way of the present petition under section 11(6) of the Arbitration & Conciliation Act 1996 ('A&C Act'), the petitioner seeks appointment of an arbitrator to adjudicate upon the disputes that are stated to have arisen with the respondent from Sales Promoter Agreement dated 08.06.2017 and Order Procurement Commission Agreement dated 01.03.2018.

2. Mr. Jatin Sharma, learned counsel for the petitioner has drawn the attention of this court to clause 20 of the Agreement which comprises the arbitration agreement; and contemplates reference of disputes between the parties to arbitration in accordance with the A&C Act; with the 'venue' of arbitration being at New Delhi.

3. For completeness, it may be recorded that the Agreement does not contain any separate provision relating to territorial jurisdiction.

4. As per the record, the petitioner invoked arbitration vide Notice dated 23.06.2021; to which the respondent sent a reply dated 22.07.2021.

5. Upon issuance of notice on this petition on 21.12.2021, the respondent has filed its counter-affidavit dated 15.02.2022 taking certain objections to the present petition.

6. That notwithstanding, Mr. Rajendra Beniwal, learned counsel for the respondent submits today, that the respondent has no objection if a sole arbitrator is appointed in the matter; and the appointment and mandate of the learned Sole Arbitrator appointed unilaterally by the respondent vide their reply dated 22.07.2021, purporting to act in terms of clause 20 of the agreement, be terminated.

7. Upon a conspectus of the averments contained in the petition and the submissions made on behalf of the respondent, 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 16.07.2021 do not appear ex-facie to be non-arbitrable.

8. Accordingly, the present petition is allowed and while terminating the mandate of the arbitrator appointed unilaterally by the respondent, Professor B.T. Kaul (Cellphone No.: +91 9810894728) is appointed as the learned Sole Arbitrator to adjudicate upon the disputes between the parties.

9. 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.

10. 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.

11. Parties shall share the arbitrator's fee and arbitral costs, equally.

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

13. Parties are directed to approach the learned Sole Arbitrator appointed within 10 days.

14. The petition stands disposed of in the above terms.

15. Other pending applications, if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J.

AUGUST 29, 2022/uj Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:07.09.2022 ARB.P. 1246/2021 Page 3 of 3 12:32:18