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M/S Nous Brand Solutions Pvt.Ltd vs Raheja Developers on 21 July, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~9
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     ARB.P. 944/2021
                                M/S NOUS BRAND SOLUTIONS PVT.LTD.                  ..... Petitioner
                                                   Through:     Mr. Vijaypal Sharma, proxy counsel
                                                                for Mr. R.N. Pareek, Advocate.

                                                   Versus

                                RAHEJA DEVELOPERS                                  ..... Respondent
                                                   Through:     Ms. Manmeet Kaur with                 Mr.
                                                                Gurtejpal Singh, Advocates.
                                CORAM:
                                HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
                                                   ORDER

% 21.07.2022 Although mediation report dated 19.05.2022 states that settlement between the parties may be possible, considering that the present petition for the appointment of arbitrator has been pending since September 2021, learned counsel for the parties jointly submit that parties are not opposed to the appointment of a sole arbitrator to adjudicate upon their inter-se disputes; while requesting however, that the appointment be kept in abeyance for some time and be made subject to the outcome of the mediation proceedings.

2. The present petition filed under section 11(5) of the Arbitration & Conciliation Act 1996 ('A&C Act' for short) is premised upon clause 22 of Work Order dated 08.10.2015 as amended on 20.04.2016, which contains the arbitration agreement between the parties, without however specifying any 'seat'/'venue' for such arbitration.

3. Notice on this petition was issued on 27.09.2021; on which date the respondent had entered appearance; and on 02.03.2022 parties were referred to mediation under the auspices of the Delhi High Court Mediation & Conciliation Centre, where mediation proceedings are still underway.

4. The record shows that the petitioner herein had filed Civil Suit No. 514/2017 against the respondent, in which suit, vidé order dated 14.08.2019 made upon an application filed by the present respondent under section 8(1) of the A&C Act, the learned Additional District Judge, Saket, New Delhi had referred the dispute to arbitration, in view of the arbitration clause contained in the Work Order.

5. The Work Order in question, from which the disputes have arisen, relates to an award of a contract by the respondent to the petitioner for cutting and dismantling of structural steel, the structure at the terrace, and fabricating and fixing of M.S. Signage at project 'Vedanta' in Sector 108, Gurgaon, Haryana.

6. Counsel for the parties however submit, that since the Work Order is silent as to a territorial jurisdiction of courts in respect of any dispute that may arise from it, the matter may be governed by the principles contained inter-alia in section 20 of the Code of Civil Procedure, 1908, considering that the respondent is ordinarily resident and carries on its business within the territorial jurisdiction of this court.

7. It is also noticed from the record that the petitioner had issued to the respondent a legal notice dated 27.04.2017 in relation to the disputes; and consequent to the referral to arbitration by the learned Additional District Judge vidé order dated 14.09.2018, another legal notice dated Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:25.07.2022 ARB.P. 944/2021 Page 2 of 4 14:48:02 09.09.2019 was also sent invoking arbitration and seeking of the reference of disputes to an arbitrator, followed by a reminder letter dated 24.02.2021.

8. In any event, as recorded above, learned counsel for the parties today jointly submit that their inter-se disputes be referred to arbitration by a learned Sole Arbitrator under the auspices of the Delhi International Arbitration Centre, New Delhi ('DIAC').

9. In view of the above, 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 that none of the dispute sought to be raised by the petitioner appears ex-facie to be non-arbitrable.

10. Accordingly, the present petition is allowed; and the disputes between the parties are referred to arbitration under the auspices of the Delhi International Arbitration Centre, New Delhi ('DIAC'); with a request to the Co-ordinator, DIAC to appoint an appropriate arbitrator in the matter, in accordance with the rules and regulations of DIAC and subject to arbitrator's fee and arbitration costs, as may be applicable under the rules.

11. As requested by the parties however, the present order shall remain in abeyance for a period of 02 months from today, to enable the parties to conclude their efforts towards a mediated settlement. However, if mediation fails or remains inconclusive within the said period of 02 months, parties are directed to approach the DIAC within 10 days thereafter, for the Co-ordinator, DIAC to appoint an arbitrator and to proceed with arbitral proceedings.

12. A copy of this order be communicated to the Co-ordinator, DIAC, for information and compliance.

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

14. Pending applications, if any, also stand disposed of.

ANUP JAIRAM BHAMBHANI, J JULY 21, 2022 ds Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:25.07.2022 ARB.P. 944/2021 Page 4 of 4 14:48:02