Delhi District Court
Arun Mehrotra vs Kishan Lal on 27 March, 2023
IN THE COURT OF SH. RAKESH SYAL,
DISTRICT JUDGE (COMMERCIAL COURT)-03,
SOUTH-WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
OMP (COMM) 08/2019
Arun Mehrotra
S/o Sh. B S Mehrotra,
R/o B-1/231, Janakpuri,
New Delhi - 110058.
... Petitioner No. 1
Ashok Mehrotra
S/o Sh. B S Mehrotra,
R/o B-1/231, Janakpuri,
New Delhi - 110058.
... Petitioner No. 2
VERSUS
Kishan Lal
S/o Late Sh. Har Sahai,
R/o C-1324, Pocket C,
Madan Pur Khadar,
Near Sarita Vihar,
New Delhi - 110076.
...Respondent
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 1 of 41
Date of Institution : 04.02.2019
Date of final arguments : 21.03.2023
Date of decision : 27.03.2023
JUDGMENT
1.1 This is a petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act), filed by the petitioner against the respondent challenging the award dated 01.11.2018, passed by Sh. B. S. Chumbak, ADJ (Retd.), Ld. Sole Arbitrator in Arbitration Case no. DAC/1468/12-16, titled as "Kishan Lal vs Arun Mehrotra & Anr."
2.1 As per the award dated 01.11.2018, the Ld. Arbitrator has, inter-alia, held, " In view of the observation given while deciding issue nos. 1 to 4, the claimant has become entitled to claim Rs. 22,06,778.90 (Rupees twenty two lac six thousand seven hundred seventy eight and paise ninety only) with interest @ 9% per annum, with effect from the date of filing of the petition till realization with cost of arbitration and litigation. Accordingly, the respondents are directed to make the aforesaid payment of Rs. 22,06,778.90 (Rupees twenty two lac six thousand seven hundred seventy eight and paise ninety only) with interest @ 9% OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 2 of 41 per annum, with effect from the date of filing of the petition till realization. Respondents shall also make payment of cost of arbitration and litigation."
3.1 The petitioner's case is that on 26.04.2012, a Civil Construction Contract was entered upon between the petitioners and the respondent for the construction of property bearing no. B-1/231, Janak Puri, Delhi-110058. The construction over the site was already in process and the respondent was engaged during the ongoing construction. Soon after the engagement of the respondent, a formal written contract was executed between the parties. It is stated that since beginning, the services of the respondent were not satisfactory and he had failed to adhere to the terms of the aforesaid contract. Soon after the execution of the agreement, the respondent engaged one Sh. Ramesh Chand as mason and handed over the work to him. Thereafter, the respondent stopped coming to the site. He very occasionally visited the site under construction.
3.2 It is further stated that as per the terms of the Contract dated 26.04.2012, the respondent was to carry out the construction along with the materials and the price mentioned in the contract is inclusive of materials. No separate rates of labour are given in the contract. Since beginning, the respondent had failed to procure the materials from the market and, therefore, he OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 3 of 41 executed the labour work only. It is further averred that during the construction, there were many deficiencies in the work as the respondent had failed to carry out the construction in accordance with the terms of the agreement. Therefore, on 19.02.2013, petitioner no.1 sent an e-mail to the respondent thereby informing him about the deficiencies and degradation of the quality of construction.
3.3 It is further stated that thereafter the respondent did not visit the construction site and abandoned the work in between. The petitioners, in order to get the construction of the property completed, engaged the services of the labours on daily wages and few of the labours, who were working on site, were retained by the petitioners on regular payment basis, and finally got the building completed in another couple of months. Even today the work which were left pending by the respondent are still pending and somehow the petitioners managed to get the essential work finished by the new labours appointed by the supervisor of the petitioners and few labours who were already worked on site.
3.4 It is further stated that during the period of construction, the petitioners, on several occasions, made the total payment of approx. Rs. 33,00,000/- (Rupees thirty three lacs only) on account of labour charges and it does not include any OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 4 of 41 payments of the material, as all the material except one or two lots at the initial time, was purchased by the petitioners only. Despite receiving the excess payment, the respondent had failed to render the services as per the terms of the contract between the parties and committed wilful and deliberate breach of the contract.
3.5 It is further stated that on 17.11.2015, the petitioners received a legal notice from the respondent for an illegal demand of Rs. 24,03,653/- (Rupees twenty four lac three thousand six hundred fifty three only). The petitioners contacted the respondent and made him understand that no amount was due, rather he had taken the amount in excess, despite the deficiency in services and breach of the terms of the contract. On 27.05.2016, a notice was received by the petitioners thereby seeking the initiation of the arbitration proceedings. Somewhere in the month of November, 2016, the petitioners received the notice from the Hon'ble High Court of Delhi, on a petition bearing no. ARB. P/655/2016, filed by the respondent for seeking reference to the arbitration. The Hon'ble High Court of Delhi, vide its order dated 01.12.2016 referred the mater to the arbitration.
3.6 It is further stated that the respondent, on 10.02.2017, filed the claim petition before the Delhi International OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 5 of 41 Arbitration Centre (hereinafter referred to as DIAC). On 20.03.2017, the petitioners filed their written statement along with counter claim. On 19.05.2017, rejoinder and the reply to the counter claim was filed by the respondent. The first arbitration proceeding before the Ld. Arbitrator took place on 20.05.2017 and the proceedings before the Ld. Arbitrator commenced. Finally, on 02.11.2018, the Ld. Arbitrator passed the award in favour of the respondent and against the petitioners.
4.1 The award has been challenged on the ground that the impugned award is against the law and facts and contrary to the material placed on record before the Ld. Arbitrator. The award is patently illegal, arbitrary and against the public policy of India as it has been passed in utter ignorance of the contractual arrangement between the parties to the dispute. There is an error apparent on the face of the award as the same is made in contravention of provisions of Section 29A of Act. Admittedly, in the present case, the claim was filed on 10.02.2017 and the arbitrator entered the reference on 22.04.2017. Therefore, the award should have been passed within 12 months, in accordance with the provisions of the Section 29A(1) of the Act. However, the impugned award was passed on 02.11.2018, which is much beyond the period prescribed in the Act.
4.2 It is further stated that the Ld. Arbitrator has failed to appreciate the fact that the claim filed by the respondent was OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 6 of 41 time barred and, therefore, the same ought to have been dismissed. The Ld. Arbitrator had failed to appreciate that the dispute between the parties had arisen on 19.02.2013 and no further work was undertaken by the respondent. The cause of action for filing the purported claim accrued to the respondent on 19.02.2013. Therefore, the claim filed on 10.02.2017 was time barred. It is further stated that the impugned award is based upon surmises and conjectures. Ld. Arbitrator had failed to appreciate the fact that the agreement relied upon by the respondent was no more in existence since the original terms of the agreement stood novated by subsequent arrangements between the parties, as the respondent had failed to procure the material and agreed to work on labour charges.
4.3 It is further stated that the impugned award is illegal as the Ld. Arbitrator, in the absence of any evidence, testimony of material witnesses and material on record, believed the averments of the respondent and ignored the evidence and testimonies of the petitioner's witnesses, who were examined before the Ld. Sole Arbitrator. The impugned award is not tenable in the eyes of law as the Case Reference bearing number DAC/1307/09-16 mentioned in impugned award belongs to some other case and the case number of the arbitral proceedings was DAC/1468/12/2016. Therefore, the said award is not binding upon the petitioners.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 7 of 414.4 It is further stated that the Ld. Sole Arbitrator did not follow the procedure established by law and in a biased manner concluded the arbitral proceedings without affording opportunity to the petitioners. Ld. Arbitrator had afforded number of opportunities to the respondent for summoning and calling CW2, whereas no opportunity was afforded to the petitioners to recall the said witness. It is also stated that Ld. Arbitrator has failed to appreciate the fact that the respondent, despite receiving an amount of more than Rs. 35,00,000/- (Rupees thirty five lacs only), on account of labour charges, failed to disclose in the entire pleadings as to how much payment he had received on account of labour charges and how much is the balance amount which is payable by the petitioners.
4.5 It is further stated that Ld. Arbitrator had failed to appreciate the fact that the bills filed along with the claim petition are inclusive of the materials and many other things other than the labour charges. The same are false and fabricated and are irrelevant. The Ld. Arbitrator had failed to appreciate the fact the agreement relied upon by the respondent is an incomplete agreement and, therefore, no proceedings can be initiated under the said agreement. Admittedly, as per clause 12 of the original agreement, it contains Annexure D, but the same is missing from the agreement filed on record. That bare reading of the agreement makes it clear that Appendix C of the agreement is OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 8 of 41 an incomplete annexure and deliberately the same has not been filed on record.
4.6 It is further stated that the Ld. Arbitrator has failed to appreciate the fact that the bills were sent to one Mr. Surender Saini, who verified the bills without any authority. CW2 Sh.Surender Saini is an interested and planted witness and falsely supported the claim of the respondent. The Ld. Arbitrator has failed to appreciate the fact that admittedly as per purported/fabricated final bill, at page no. 12, the total area constructed is 13335 sq.ft and as per the respondent, the total payment comes to Rs. 99,00,872 (Rupees ninety nine lacs eight hundred seventy two only), whereas the respondent admitted to have received the total payment of Rs.92-93 lacs, but throughout the arbitral proceedings, he failed to explain as to how much payment is made towards the labour charges and how much remains pending.
4.7 It is further stated that the Ld. Arbitrator has failed to appreciate the fact that the agreement, Ex. CW-1/1 is a photocopy and that too is incomplete. The original of the same was not produced before the Ld. Arbitrator and, therefore, there was every reason to believe that the said agreement is not the same as original. It is also stated that the Ld. Arbitrator has failed to appreciate the facts regarding alteration of rates by the respondent, non-assessment/deduction of the amount of work OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 9 of 41 executed before the execution of agreement, less steel used by the respondent, unfinished works, non procurement of material by the respondent, claim for the alleged extra work, which was not exceeded and the bills filed with the claim being false, forged and fabricated etc. It is also stated that the impugned award dated 01.11.2018 is contrary to the principals of natural justice.
5.1 The respondent has filed reply to the petition, wherein, it is stated that the petition filed by the petitioners is an abuse of process of law. The petition has been filed with the sole intention to defeat the claim of the respondent. The grounds taken by the petitioner are flimsy, baseless and not tenable. The petition under Section 34 of the Act is without any cause of action. The Arbitrator had granted ample opportunities to both the parties to prove their case. The petitioners and the respondent have also lead evidence and the award passed by Ld. Arbitrator is based on cogent reason. The petition under Section 34 of the Act is barred by limitation, as the same has been filed after passing of the mandatory period of limitation.
5.2 On merits, in reply to para no. 2.2 of the petition, it is denied that since beginning, the services of the respondent were not satisfactory and the respondent failed to adhere to the terms of the aforesaid contract. It is also denied that soon after the execution of the agreement, the respondent engaged one Sh.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 10 of 41Ramesh Chaned as mason and handed over the work to him. It is denied that thereafter he stopped coming to the site and he visited the site very occasionally. It is stated that the respondent has completed the work as per the terms and condition entered into between the petitioners and the respondent. This court cannot re- appreciate the evidence available on record.
5.3 In reply to para no. 2.3 of the petition, it is denied that since beginning, the respondent had failed to procure the material from the market and, therefore, the respondent executed the labour work only. It is submitted that respondent had undertaken the entire construction as per the terms and conditions of the agreement dated 26.04.2012 and procured all the material for completion of construction to the satisfaction of the petitioners. It is further submitted that the petitioners are treating the petition under Section 34 of the Act as an appeal against the arbitral award, which is not permissible under the law. In reply to para no. 2.4 of the petition, it is denied that during the construction, there were many deficiencies in the work or that the respondent has failed to carry out the construction in accordance with the terms of the agreement.
5.4 In reply to para no. 2.5 of the petition, it is stated that it is false to allege that the petitioners in order to get the construction of the property completed, engaged the services of OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 11 of 41 the labours on daily wages or that some labour, who were working on site were retained by the petitioners on regular basis and got the building completed in couple of months. It is denied that even today the work which were left pending by the respondent are still pending or that the petitioner managed to get the essential work finished by new labours appointed by the supervisor of the petitioners. In reply to para no. 2.6 of the petition, it is denied that the petitioners on several occasions made the total payment of approximately Rs. 33 lacs (Rupees three three lac only).
5.5 In reply to para no. 2.7 of the petition, it is denied that the respondent has demanded any illegal payment to the tune of Rs. 24,03,653/- (Rupees twenty four lac three thousand six hundred fifty three only) from the petitioners/applicants or that, thereafter, the applicants contacted the respondent and told him that no amount was due or informed him that the respondent has taken excessive amount despite the deficiency in the services as alleged or breach of the terms of the contract. In reply to para no. 2.8 of the petition, it is denied that that after receiving the notice dated 27.05.2016, the petitioners contacted the respondent informing him that no amount is due or that the respondent has to compensate the petitioners for the wilful breach of the terms of the agreement or for taking payment in excess.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 12 of 415.6 In reply to the para nos. 7-9 of the petition, it is denied that the petitioners have sent an e-mail on 19.02.2023 to the respondent or that the Ld. Arbitrator has wrongly held the issue of limitation in favour of the respondent. In reply to para nos. 10-13 of the petition, it is denied that the respondent breached the contract or that executed the work till February, 2013, as alleged. Other averments made in the petition have also been denied.
6.1 It is pertinent to mention that along with the petition, the petitioners have also filed an application under Section 36 (2) & (3) of the Act. The respondent has filed reply to the same. The respondent along with the reply, has also filed an application under Section 29A(3) of the Act. The petitioner has filed reply to the same.
7.1 Sh. Ritesh Saxena, Ld. Counsel for the plaintiff has argued that the court has the territorial jurisdiction as the suit property is situated at Janakpuri, New Delhi, which is within the territorial jurisdiction of the court. He has further argued that the award dated 01.11.2018 is patently illegal as the same was passed in violation of the provisions of Section 29(A)(1) of the Act. As per Section 29A(1), the Hon'ble Arbitral Tribunal was required to pass the award within 12 months from the date entering upon the reference. However, in the present case, the Arbitral Tribunal OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 13 of 41 entered the reference on 22.04.2017 and the award was passed on 01.11.2018 i.e. after a period of 18 months and 11 days. After completion of 12 months from the date of entering into the reference, the Ld. Arbitrator has became "Functus Officio."
7.2 It has been further argued that the Ld. Arbitrator has failed to properly interpret the provisions of Sections 21 and 43 of the Act. Ld. Arbitrator has relied upon the notice dated 27.05.2016 sent by the respondent to the petitioners and also on an averment made during the course of proceedings that the respondent had worked upon the site till October, 2013. He has further argued that to calculate the limitation period in an arbitration matter, a conjoint reading of Sections 21 and 43 of the Act and Article 137 of the Limitation Act, 1963 is required to be made. Section 43 of the Act clearly stipulates that the Limitation Act, 1963, shall apply to arbitration proceedings as it applies to proceedings in Court. Further Section 43 stipulates that an arbitration proceedings shall commence on the date referred in Section 21 of the Act. Section 21 of the Act provides that the arbitral proceedings commence on a date on which request for the matter to be referred to the Arbitration is received by the respondent. He has contended that the Ld. Arbitrator has failed to understand that the limitation does not stop running even if the notice is served.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 14 of 417.3 Ld. Counsel for the petitioner has further argued that the Ld. Arbitrator has failed to appreciate the fact that Ex. CW1/5/X was filed by the respondent during his cross- examination and at page no.173 of the said documents, it clearly shows that respondent did not receive any payment after 12.11.2012. If he had worked at site till September/October, 2013, he would have certainly received some payment but he did not, as he had left the site and further work was carried out by another contractor, namely, Sh. Ramesh. It is submitted that an e-mail dated 19.02.2013 was sent by the petitioners to the respondent for deficiencies and degradation of the quality of construction. Since then the dispute arose and he left the site and another contractor Sh. Ramesh completed the work. It is also argued that the Ld. Arbitrator has completely ignored the testimony of RW2, who stated that the respondent did not visit the site in the year 2013. Since the dispute had already arisen in February, 2013, Ld. Arbitrator was to compute the limitation from February, 2013 not from September/October, 2013. Notice was served on 27.05.2016 and an application under Section 11(6) of the Act was made before the Hon'ble High Court of Delhi on 20.10.2016. The Hon'ble High Court of Delhi referred the matter to arbitration on 01.12.2016 and the claim was filed by the respondent on 25.03.2017. The Ld. Arbitrator did not consider the fact in complete and solely relied upon the notice dated 27.05.2016. In the impugned award, he even failed to mention about the application filed by the respondent under OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 15 of 41 Section 11(6) of the Act. According to the Ld. Arbitrator, once the notice is served in terms of Section 21 of the Act, the proceedings commences, but on the contrary the period to file the claim, excluding the notice period of 30 days is three years. Admittedly, the dispute arose in February, 2013. Even for the sake of arguments if it is presumed that the dispute arose in September/October, 2013 even then the claim filed on 25.03.2017 is time barred.
7.4 Ld. Counsel has further argued that the Ld. Arbitrator acted beyond his jurisdiction by rewriting the terms of the agreement. The impugned award is in clear violation of Section 28(3) of the Act. The Ld. Arbitrator created a new contract for the parties. It is further submitted that the terms of the Civil Construction Contract dated 26.04.2012 got novated by oral terms as the respondent had failed to procure the material from the market. Despite the clear admission by the respondent that he had worked as a labour contractor only and all the materials were purchased by the petitioners, all the bills annexed with the claim before the Ld. Arbitrator were of the material. There was no occasion for the Ld. Arbitrator to appreciate the false and frivolous bills upon which the claim was filed as all the bills pertains to the payment of materials which were never purchased by the respondent. It is further submitted that the respondent left the site in February, 2013 and all the bills were OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 16 of 41 generated on 04.10.2015 and were received by one Surender Saini in his office. Despite the fact that no material was ever purchased by the respondent, the Ld. Arbitrator allowed the claim to the tune of Rs.22,06,778.90 (Rupees twenty two lac six thousand seven hundred seventy eight and paise ninety only), which contains the cost of material.
7.5 Ld. Counsel for the petitioner has further argued that the Ld. Arbitrator has failed to appreciate the fact that all the bills were generated on 04.10.2015 and allegedly the work was completed in October, 2013. The bills were never sent to the petitioners. Ld. Arbitrator has failed to appreciate that CW2 is neither the contractor nor an architect of the property under agreement and he had no authority to receive or verify the bills. Further CW2 is a planted witness. It is also contended that the Ld. Arbitrator has completely ignored the version of the defense and passed the award in contravention of the records and law. Ld. Counsel for the plaintiff has relied upon Spentex Industries Limited vs. Louis Dreyfus Commodities India Pvt. Ltd., 2019 SCC OnLine Del. 7257, Hasmukh Prajapati vs. Jai Prakash Associates Ltd. Through its Managing Director, 2022 SCC OnLine All 96, PCP International Limited vs. Lanco Infratech Limited vs., 2015 SCC OnLine Del 10428, Roop Singh Bhatty vs. M/s Shriram City Union Finance Limited, (Civil Revision Petition Nos.1354 and 1934 of 2021, decided by Hon'ble High OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 17 of 41 Court of Telangana on 08.04.2022), and Naresh Kanayalal Rajwani & Ors. vs. M/s Kotal Mahindra Bank Limited & Anr., (Com. Arbitration Petition (L) No.1444/2019 decided by the Hon'ble High Court of Bombay on 09.03.2021).
8.1 Sh. S. M. Anis, Ld. Counsel for the respondent has argued that in this case, the seat/place of arbitration is not within the jurisdiction of this court. Thus, this court has no jurisdiction to adjudicate in the matter. He has contended that since the question of jurisdiction goes to the root of the matter, hence, the same is to be decided first. Ld. Counsel for the respondent has also argued that the present petition under Section 34 of the Act is false and baseless. The petitioner after getting the property built from the respondent had not paid his legitimate dues despite various requests and demands. The petitioners are delaying to make the payment to respondent on one pretext or the other. He has further argued that as per the order sheet of the arbitral proceedings, both the parties were regularly participating in the arbitration proceedings and on 26.09.2018, the proceedings were completed by the parties, by finally arguing and filing written submissions. During the proceedings and till the pronouncement of the award, neither the claimant nor the respondent/non- claimant objected about the expiry of mandate of arbitrator. Rather they had given their implied consent by participating in the proceedings. The 12 months period prescribed for passing an OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 18 of 41 award ended on 19.05.2018 and the extended period of six months, as consented, lapsed on 19.11.2018. It is also submitted that as per Section 29A(3) of the Act, the prescribed period can be extended for six months, with the consent of parties. The award passed by the Ld. Arbitrator is well within the time of the extended period of six months. The respondent has also filed an application under Section 29A(3) of the Act as an abundant caution though the further extended period of six months had not expired. Thus, the award passed by the Ld. Sole Arbitrator is within time.
8.2 It has been further argued that the courts have limited powers under Section 34 of the Act and cannot re- appreciate the evidence recorded and appreciated by the Ld. Arbitrator. There is no patent illegality on the face of the award. The award can not be set aside merely on the ground of erroneous application of law or by re-appreciation of evidence. Ld. Counsel for the respondent has relied upon Lanco Infratech Limited vs. PCP International Limited, (FAO(OS) 568/2015 & CM No.22942/2015 decided by the Hon'ble High Court of Delhi on 20.01.2016), Hindustan Construction Company Limited vs. NHPC Limited & Anr., 2020 (4) SCC 310 and Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited & Ors., 2017 (7) Law Suit (SC)
421. OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 19 of 41 9.1 I have heard Sh. Ritesh Saxena, Ld. Counsel for the petitioner as well as Sh. S. M. Anis and Sh. Praveen Pandey, Ld. Counsels for the respondent and also perused the record.
10.1 A perusal of the record reveals that in this case, admittedly, a Civil Construction Contract dated 26.04.2012 was executed between the petitioners and the respondent. The said agreement contain an arbitration clause as under:-
"In cases of any dispute arising out of this agreement, shall be decided by the owner and the contractor at Ist instance and in case of disagreement the dispute shall be referred for the arbitration to the Arbitrated by mutual agreed arbitrator as agreed by both the parties. Otherwise subject to Delhi Jurisdiction only."
10.2 The respondent has filed Arb. Petition no. 655/2016 under Section 11 of the Act, before the Hon'ble High Court of Delhi. Vide order dated 01.12.2016, the Hon'ble High Court of Delhi has directed as under:-
"7. Accordingly, with the consent of the parties, it is directed that an Arbitrator be appointed under the Rules of the Delhi International Arbitration Centre (DIAC). The representatives of OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 20 of 41 the parties shall appear before the Co-ordinator, DIAC on 23.12.2016 at 11.00 a.m. The arbitration shall be conducted under the aegis of DIAC and in accordance with its Rules."
10.3 The DIAC has accordingly appointed Sh. Balwan Singh Chumbak, ADJ (Retd.) as the Sole Arbitrator. Both the parties had participated in the arbitration proceedings. The record also reveal that the ld. Sole Arbitrator has held arbitration proceedings at DIAC and 5, Sirifort Road, New Delhi and passed the impugned award dated 01.11.2018. Admittedly, the said place of arbitration does not fall within the jurisdiction of this court.
10.4 It is pertinent to refer to Section 2 (1) (e), which defines 'Court' as under:-
"(e) "Court" means -
(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court or any Court of Small Causes"OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 21 of 41
(ii) ........" 10.5 It is also pertinent to Section 20 of the Act, which
provides for the "Place of arbitration" as under :-
"20. Place of Arbitration - (1) The parties are free to agree on the place of arbitration.
(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.
(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property."
(emphasis supplied) 10.6 Further, Section 42 of the Act provides for jurisdiction for filing of any application in respect of an Arbitration Agreement as under:-
"42. Jurisdiction.--Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 22 of 41 force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."
10.7 In Naresh Kanayalal Rajwani & Ors. vs. M/s Kotak Mahindra Bank Ltd. & Anr.,(Com. Arbitrtion Petition (L) No.1444 of 2019 decided by Hon'ble High Court of Bombay on 09.03.2021), relied upon by the petitioner, the petitioners have challenged the award dated 04.08.2019 under Section 34 of the Act. In this case, as per the arbitration clause, the venue of the arbitration was specified to be New Delhi. Since disputes arose between the parties, arbitral proceedings were instituted at New Delhi and award dated 30.01.2013 was passed. The same was challenged under Section 34 of the Act before the Hon'ble High Court of Bombay. Respondent no. 1 appeared on several occasions before the said court, but he did not object to the territorial jurisdiction of the court. Finally, the said award was set aside, vide order dated 17.08.2015 of the said court. The same was not challenged. Fresh arbitration proceedings were initiated. Another Sole Arbitrator was appointed on 09.02.2018 and a fresh award was passed on 03.08.2019. This arbitration proceedings were held at New Delhi and the award was also passed at New Delhi. In a petition, under Section 34 of the Act, OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 23 of 41 challenging the said award, the Hon'ble High Court of Bombay has held, "In the facts of the present case, the first application was made before this Court under Section 34 of the Arbitration Act challenging the First Arbitral Award dated 30th January, 2013. It is not as if this Court whilst entertaining the said petition was not the High Court exercising original jurisdiction or did not have subject-matter jurisdiction to entertain the said petition. If at all, it did not have territorial jurisdiction and which was waived by respondent No.1 as discussed earlier. This being the case, I find that the reliance placed by respondent No.1 on this decision also is wholly misplaced. (emphasis supplied).
10.8 In Hasmukh Prajati vs. Jai Prakash Associates Ltd., 2022 SCC OnLine All 96, relied upon by the petitioner, the Hon'ble High Court of Allahabad held, "34. In the present case, the arbitration agreement clearly shows that the parties agreed as per Clause 10.6 that the governing law and the jurisdiction of the courts would be the courts of Gautam Buddh Nagar, U.P., India and it shall have jurisdiction over all matters arising out of or relating to the allotment/provisional allotment subject to the provisions of Clause 10.9 of the standard terms and conditions. This exception regarding Clause 10.9 constitutes "significant contrary indica" as per Shashoua OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 24 of 41 principle in agreement regarding treating the "venue" of arbitration (New Delhi) as "seat" of arbitration proceedings (Gautam Buddh Nagar) where the cause of action arose. In Clause 10.9 regarding dispute resolution, it was agreed that the "venue" of arbitration shall be New Delhi, India. Accordingly, the sole arbitrator conducted the arbitration proceedings at the agreed venue of New Delhi and passed the award. From the standard terms and conditions/agreement between the parties, it is clear that the parties never clearly stated about the seat of arbitration but from Clause 10.6 of the agreement, the courts at Gautam Buddh Nagar, U.P., India, was agreed to have jurisdiction over all matters arising out of or relating to the allotment/provisional allotment. This clause proves that the parties had chosen the "seat" of arbitration as Gautam Buddh Nagar, U.P., India, and the "venue" of arbitration as New Delhi, India."
10.9 In Spentex Industries Ltd. vs. Louis Dreyfus Commodities India Pvt. Ltd., 2019 SCC OnLine Del 7257, it has been held, "2. It is submitted on behalf of M/s Louis Dreydus Commodities India Pvt. Ltd. - Respondent (hereinafter, 'Respondent') that the arbitration was conducted under the Rules and Bye-laws of the CAI and proceedings were held in CAI's office in Mumbai. Hence, only Courts in Mumbai can entertain a challenge to the OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 25 of 41 said award. The case of M/s Spentex Industries Ltd. - Petitioner (hereinafter, 'Petitioner'), on the other hand, is that the contract has an exclusive jurisdiction clause, which vests jurisdiction in the Courts in Delhi and the present petition is, thus, maintainable before this Court."
"4 ......... The contract between the parties contained the following clauses.
ARBITRATION All disputes will be resolved through arbitration in accordance with the rules and by laws of the Cotton Association of India, Mumbai.
.............
JURISDICTION The Court in New Delhi alone will have the exclusive jurisdiction to deal with any matter arising out of arbitration proceedings or the award. This contract incorporates all terms printed overleaf."
"11. However, the clauses in this contract are worded very interestingly. The jurisdiction clause is not a clause which vests the Courts in Delhi with jurisdiction to deal with matters in respect of general disputes which arise out of the contract, as is OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 26 of 41 usually the case with a Court jurisdiction clause. The jurisdiction clause here uses the words "alone" and "exclusive jurisdiction"
for Courts in Delhi, "to deal with any matter arising out of arbitration proceedings or the award". This is clear and categorical that Courts in Delhi alone will have jurisdiction, not in respect of general disputes arising out of the contract, but in respect of the arbitration proceedings and the award. To this extent, the clause is unusual, but reflects the intention of the parties, at the time of execution of contract."
"23. Thus, the intention of the parties being clearly decipherable from the jurisdiction clause in the contract, the preliminary objection as to the jurisdiction of this Court is rejected. It is held that this Court has jurisdiction to entertain the present petition under Section 34 of the Arbitration and Conciliation Act, 1996"
10.10 In PCP International Limited vs. LANCO Infratech Limited, 2015 SCC OnLine Del 10428, relied upon by the petitioner, in a petition under section 9 of the Act, the Hon'ble High Court has held, "7. The aforesaid paragraphs in the judgment in the case of Enercon (India) Limited and Others (supra) make it clear as to what is the difference between the venue and the seat of OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 27 of 41 arbitration and that merely because the arbitrator chooses to hold the arbitration at a venue which is different than the seat of the arbitration does not confer territorial jurisdiction on the court where the venue of the arbitration exists. Therefore merely because the venue of arbitration is in Delhi, this Court would not have territorial jurisdiction because under Section 2(1)(e) of the Arbitration and Conciliation Act, 1996 'Court' is defined as a court having jurisdiction to decide questions forming the subject matter of arbitration if the same had been the subject matter of the suit, i.e, normal proceedings of the Code of Civil Procedure, 1908 (CPC) with respect to territorial jurisdiction being Sections 16 to 20 will apply and hence applying these Sections with the ratios of the judgments of the Supreme Court in the cases of M/s. Patel Roadways Limited, Bombay (supra) and A.B.C. Laminart Pvt. Ltd. (supra), this Court would have no territorial jurisdiction."
10.11 In Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited & Ors., 2017 Law Suit (SC) 421, relied upon by the respondent, the Hon'ble Supreme Court of India has held, "14. This Court reiterated that once the seat of arbitration has been fixed, it would be in the nature of an exclusive jurisdiction clause as to the courts which exercise supervisory powers over the arbitration....."
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 28 of 4110.12 It is pertinent to refer to Cinepolis India Pvt. Ltd vs Celebration City Projects Pvt. Ltd. and Another, 2020 SCC OnLine Del 301, wherein the Hon'ble High Court of Delhi has held, "21. ....... A bare perusal of the arbitration clause shows that the parties have clearly designated New Delhi as the place for arbitration proceedings. While it is true that the arbitration clause does not specifically use the word "seat" but it is no longer res integra that the term "place" would be the "juridical seat" for the purpose of Section 2(2) of the Act. It has also been settled by various judgments that the word "place" would refer to "juridical seat" for the purpose of Section 20(1) and Section20(2)of the Act whereas in Section 20(3) the word "place" is equivalent to "venue". This position of law is clear from reading of the judgment of the Constitution Bench in the case of BALCO (supra) and Indus Mobile Distribution Private Limited (supra).
22. The Constitution Bench of the Supreme Court examining the issue of seat and venue of an Arbitral proceeding observed as under:-
75. We are also unable to accept the submission of the learned counsel for the appellants that the Arbitration Act, 1996 does not make seat of the arbitration as the centre of gravity of the arbitration. On the contrary, it is accepted by most of the OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 29 of 41 experts that in most of the national laws, arbitrations are anchored to the seat/place/situs of arbitration. Redfern in Para 3.54 concludes that "the seat of the arbitration is thus intended to be its centre of gravity." ..............
We are of the opinion, the term "subject-matter of the arbitration" cannot be confused with "subject-matter of the suit". The term "subject-matter" in Section 2(1)(e) is confined to Part I. It has a reference and connection with the process of dispute resolution. Its purpose is to identify the courts having supervisory control over the arbitration proceedings. Hence, it refers to a court which would essentially be a court of the seat of the arbitration process. In our opinion, the provision in Section 2(1)(e) has to be construed keeping in view the provisions in Section 20 which give recognition to party autonomy. Accepting the narrow construction as projected by the learned counsel for the appellants would, in fact, render Section 20 nugatory. In our view, the legislature has intentionally given jurisdiction to two courts i.e. the court which would have jurisdiction where the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 30 of 41 a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situated and the courts within the jurisdiction of which the dispute resolution i.e. arbitration is located."
23. The Supreme Court in the case of Indus Mobile Distribution Private Limited (supra) after referring to Sections 2(1)(e) and 20 of the Act and various judgments including the judgment in the case of BALCO (supra) held as under:-
18. The amended Act, does not, however, contain the aforesaid amendments, presumably because the BALCO [BALCO v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552 : (2012) 4 SCC (Civ) 810] judgment in no uncertain terms has referred to "place" as "juridical seat" for the purpose of Section2(2) of the Act. It further made it clear that Sections 20(1) and 20(2) where the word "place" is used, refers to "juridical seat", whereas in Section 20(3), the word "place" is OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 31 of 41 equivalent to "venue". This being the settled law, it was found unnecessary to expressly incorporate what the Constitution Bench of the Supreme Court has already done by way of construction of the Act.
19. A conspectus of all the aforesaid provisions shows that the moment the seat is designated, it is akin to an exclusive jurisdiction clause. On the facts of the present case, it is clear that the seat of arbitration is Mumbai and Clause 19 further makes it clear that jurisdiction exclusively vests in the Mumbai courts. Under the Law of Arbitration, unlike the Code of Civil Procedure which applies to suits filed in courts, a reference to "seat" is a concept by which a neutral venue can be chosen by the parties to an arbitration clause. The neutral venue may not in the classical sense have jurisdiction -- that is, no part of the cause of action may have arisen at the neutral venue and neither would any of the provisions of Sections 16 to 21 of CPC be attracted. In arbitration law however, as has been held above, the moment "seat" is determined, the fact that the seat is at Mumbai would vest Mumbai courts with exclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties."
"24. The Supreme Court in the case of Indus Mobile Distribution Private Limited (supra) analyzed Section 2(1)(e) and Section 20 of the Act as well as the Law Commission Report, 2014. It was held that the moment a seat is designated it is akin to an OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 32 of 41 exclusive jurisdiction clause. It was further held that under the law of arbitration unlike the CPC which applies to suits, reference to seat is a concept by which a neutral venue can be chosen by the parties which may not in the classic sense have jurisdiction i.e. no part of the cause of action may have arisen and neither would any of the provisions of Sections 16 to 21 of the CPC be attracted. In the said case, the Court was concerned with two different clauses, one which stipulated that arbitration shall be conducted at Mumbai and the other as per which the disputes and differences arising out of the agreement was subject to the exclusive jurisdiction of the courts at Mumbai. The respondent had filed a petition under Section 11 of the Act for appointment of an arbitrator before this Court. The petition was disposed of by the High Court holding that no part of the cause of action arose in Mumbai and the exclusive jurisdiction clause would not apply and Delhi being the first Court in which the petition was filed and where the part of cause of action had arisen would have jurisdiction. The Supreme Court held that the seat of arbitration was Mumbai and even the exclusive jurisdiction vested in the Mumbai courts. It was thus held that Mumbai courts alone would have jurisdiction to the exclusion of all other courts as the juridical seat of arbitration was at Mumbai."
"26. The Supreme Court placed reliance on the observations made by the Court of Appeal, England in C v. D (2008) BusLR 843, wherein it is observed that:-OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 33 of 41
"It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award."
"28. In fact in the case of BGS SGS Soma JV (supra), the Supreme Court has laid down the tests for determination of the seat. It has been held that wherever there is an express designation of a venue and no designation of any alternative place as the seat combined with supranational body of rules governing the arbitration and no other significant contrary indicia, the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitral proceeding.
29. Finally, it was held that whenever there is a designation of a place of arbitration in an arbitration clause as being the venue of the arbitration proceedings, the expression "arbitration proceedings" would make it clear whether the venue is really the seat. If the arbitration proceedings as a whole are intended to be held at a particular place, including the making of an award at that place, then the venue is the seat. This language has to be contrasted with the language where it is only mentioned that the tribunal is to meet or have witnesses examined and in such a case the place is only a venue and not the seat." (emphasis supplied).
10.13 In Hindustan Construction Company Limited vs NHPC Limited and Another, (2020) 4 SCC 310, the Hon'ble Supreme Court held, OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 34 of 41 "3. This Court in Civil Appeal No. 9307 of 2019 entitled BGS SGS Soma JV vs NHPC Ltd. delivered a judgment on 10.12.2019 i.e. after the impugned judgment was delivered, in which reference was made to Section 42 of the Act and a finding recorded thus:
"59. .....Section 42 is meant to avoid conflicts in jurisdiction of Courts by placing the supervisory jurisdiction over all arbitral proceedings in connection with the arbitration in one Court exclusively. This is why the section begins with a non-obstante clause, and then goes on to state "...where with respect to an arbitration agreement any application under this Part has been made in a Court..." It is obvious that the application made under this part to a Court must be a Court which has jurisdiction to decide such application. The subsequent holdings of this Court, that where a seat is designated in an agreement, the Courts of the seat alone have jurisdiction, would require that all applications under Part I be made only in the Court where the seat is located, and that Court alone then has jurisdiction over the arbitral proceedings and all subsequent applications arising out of the arbitral agreement. So read, Section 42 is not rendered ineffective or useless. Also, where it is found on the facts of a particular case that either no "seat" is designated by agreement, or the so-called "seat" is only a convenient "venue", then there may be several Courts where a part of the cause of action arises that may have jurisdiction. Again, an application under Section 9 of the OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 35 of 41 Arbitration Act, 1996 may be preferred before a court in which part of the cause of action arises in a case where parties have not agreed on the "seat" of arbitration, and before such "seat"
may have been determined, on the facts of a particular case, by the Arbitral Tribunal under Section 20(2) of the Arbitration Act, 1996. In both these situations, the earliest application having been made to a Court in which a part of the cause of action arises would then be the exclusive Court under Section 42, which would have control over the arbitral proceedings. For all these reasons, the law stated by the Bombay and Delhi High Courts in this regard is incorrect and is overruled. "
4) This was made in the backdrop of explaining para 96 of the Balco, which judgment read as a whole declares that once the seat of arbitration is designated, such clause then becomes an exclusive jurisdiction clause as a result of which only the courts where the seat is located would then have jurisdiction to the exclusion of all other courts.
5) Given the finding in this case that New Delhi was the chosen seat of the parties, even if an application was first made to the Faridabad Court, that application would be made to a court without jurisdiction. This being the case, the impugned judgment is set aside following BGS SGS Soma JV, as a result of which it is the courts at New Delhi alone which would have jurisdiction for the purposes of challenge to the Award."OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 36 of 41
10.14 Further, in BBR (India) Private Limted vs S.P. Singla Constructions Private Limited, (2023) 1 SCC 693, the Hon'ble Supreme Court has held, "19. Relying upon the Constitutional Bench decision in BALCO, in BGS SGS Soma, it has been held that sub- section (3) of Section 20 refers to 'venue' whereas the 'place' mentioned in sub-section (1) and sub-section (2) refers to the 'jurisdictional seat'. To explain the difference, in BALCO, a case relating to international arbitration, reference was made to several judgments, albeit the judgment in Shashoua v. Sharma was extensively quoted to observe that an agreement as to the 'seat of arbitration' draws in the law of that country as the curial law and is analogous to an exclusive jurisdiction clause. The parties that have agreed to 'the seat' must challenge an interim or final award only in the courts of the place designated as the 'seat of arbitration'. In other words, the choice of the 'seat of arbitration' must be the choice of a forum/court for remedies seeking to attack the award.
20. The aforesaid principles relating to international arbitration have been applied to domestic arbitrations. In this regard, we may refer to paragraph 38 of BGS SGS Soma, which reads as under:
"38. A reading of paras 75, 76, 96, 110, 116, 123 and 194 of BALCO would show that where parties have selected the seat of arbitration in their agreement, such selection would then OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 37 of 41 amount to an exclusive jurisdiction clause, as the parties have now indicated that the courts at the "seat" would alone have jurisdiction to entertain challenges against the arbitral award which have been made at the seat.
"23. It may, however, be noted that clause (e) to sub-section (1) of Section 2 was amended by inserting sub-clause (ii) with the specific objective to solve the problem of conflict of jurisdiction that would arise in cases where interim measures are sought in India in cases of arbitration seated outside India. In the context of domestic arbitrations it must be held that once the 'seat of arbitration' has been fixed, then the courts at the said location alone will have exclusive jurisdiction to exercise the supervisory powers over the arbitration. The courts at other locations would not have jurisdiction, including the courts where cause of action has arisen. As observed above and held in BGS SGS Soma, and Indus Mobile, the moment the parties by agreement designate 'the seat', it becomes akin to an exclusive jurisdiction clause. It would then vest the courts at 'the seat' with exclusive jurisdiction to regulate arbitration proceedings arising out of the agreement between the parties.
"24.The Court in BGS SGS Soma has also dealt with the situation where the parties have not agreed on or have not fixed the jurisdictional 'seat of arbitration', and has laid down the following test to determine the 'seat of arbitration' which would OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 38 of 41 determine the location of the court that would exercise supervisory jurisdiction. The test is simple and reads:
"61. It will thus be seen that wherever there is an express designation of a "venue", and no designation of any alternative place as the "seat", combined with a supranational body of rules governing the arbitration, and no other significant contrary indicia, the inexorable conclusion is that the stated venue is actually the juridical seat of the arbitral proceeding."
For formulating the test reference was made to several Indian and foreign judgments to emphasise that where the parties had failed to choose the 'jurisdictional seat' which would be governing the arbitral proceedings, the proceedings must be considered at any rate prima facie as being governed and subject to jurisdiction of the court where the arbitration is being held, on the ground that the said court is most likely to be connected with the proceedings." (emphasis supplied) 10.15 From the aforesaid, it is clear that arbitrations are anchored to the seat/place/situs of arbitration. The seat of arbitration is akin to an exclusive jurisdiction clause. The choice of seat for the arbitration is choice of forum for remedies seeking to attack the award. Once the seat of the arbitration has been fixed, then the court at the said location alone has the exclusive jurisdiction to exercise the supervisory powers over the arbitration. The courts at other locations, including the courts where the cause of action has arisen, would not have jurisdiction.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 39 of 41Where the parties had failed to choose the "jurisdictional seat", which would be governing the arbitral proceedings, the proceedings are to be considered as being governed and subject to jurisdiction of the court where the arbitration is held, which is the place/seat of arbitration determined in terms of Section 20 (2) of the Act. In view of the above, the contention of Ld. Counsel for the petitioner that this court has the jurisdiction, as the property in question is situated at Janakpuri, New Delhi, which falls within the territorial jurisdiction of this court, is not tenable.
11.1 As mentioned above, in this case, the arbitration proceedings were conducted under the aegis of DIAC at DIAC, New Delhi and 5 Sirifort, New Delhi. The said place of arbitration does not fall within the jurisdiction of this court.
12.1 In view of the aforesaid facts and the judgments in Cinepolis India Pvt. Ltd vs Celebration City Projects Pvt. Ltd. and Another (Supra), Hindustan Construction Company Limited vs NHPC Limited and Another (Supra) and BBR (India) Private Limited vs S.P. Singla Constructions Private Limited (Supra), it is considered that this court has no jurisdiction to adjudicate upon the present dispute. Accordingly, the petition under Section 34 of the Act is dismissed.
OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 40 of 4113.1 Parties to bear their own costs.
14.1 Decree be drawn accordingly.
15.1 A copy of this judgment be issued to all the parties to the dispute through electronic mail, if the particulars of the same have been furnished, or otherwise, in terms of Order XX Rule 1 of the Code of Civil Procedure, 1908 (as amended by the Commercial Courts Act, 2015).
16.1 File be consigned to Record Room.
Announced in open Court on 27.03.2023.
(Rakesh Syal) District Judge (Commercial Court)-03, South-West, Dwarka Courts, New Delhi 27.03.2023 OMP (Comm) 08/2019 Arun Mehrotra & Anr. vs Kishan Lal Page 41 of 41