Delhi District Court
Kanshi Ram Bansal vs . Puneet Mehta & Anr. on 1 June, 2012
Kanshi Ram Bansal Vs. Puneet Mehta & Anr.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT JUDGE04 :
SOUTH DISTRICT : SAKET COURT COMPLEX, NEW DELHI
ARB. NO. 31/12
In the matter of :
Sh. Kanshi Ram Bansal
S/o Late Sh. Arjun Dass,
R/o H. No. 41, Sector6, Panchkula .....Appellant
Versus
1. Puneet Mehta
S/o Sh. Sudhir Mehta
R/o A8/67, Kalkaji Extn.
New Delhi19
2. Dr. Subhash Chand Gera/ arbitrator
B14A, Gangotri Enclave
Alaknanda, N. Delhi ....Respondents
Order
1. Petitioner, Sh. Kanshi Ram Bansal, has filed an appeal U/s 37 (2) of Arbitration and Conciliation Act, 1996, against order dated 09.03.12, passed by respondent no. 2, who was working as arbitrator in the proceedings between the petitioner and respondent no. 1.
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2. In brief, the fact are appellant being lessee in respect of property no. E117, Kalkaji, New Delhi raised construction in the property and sold the flats to different persons in year 199495. Respondent no. 1, Puneet Mehta had purchased the basement in the suit property measuring 1200 sq. ft. and agreement to sell was executed on 24.02.95. There was an agreement between the parties for conversion of the suit property in regard to the specific portions purchased by the purchasers from leasehold to freehold and to facilitate the same, special power of attorney was executed by the appellant in favour of respondent no. 2, Dr. Subhash Chand Gera. Respondent no. 1 was also one of the occupant / purchaser and was in possession of the ground floor of the suit property. Differences arose between the parties and vide document dated 12.07.11, appellant cancelled the SPA given by him in favour of respondents no. 2. It was in these circumstances that respondent no. 1 after giving a legal notice to the appellant appointed respondent no. 2 as an arbitrator in the proceedings. Appellant took objection to the appointment of respondent no. 2 to act as an arbitrator, taking the stand that he had never entered into any agreement for referring the dispute to arbitration, with respondent no. 1 or any other purchaser. Vide order dated 09.03.12, respondent no. 2 has ruled that there was an arbitration agreement between the parties and he further rejected the objections of the appellant as regards the appointment of respondent no. 2 as an arbitrator in the dispute between appellant and respondent no. 1.
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3. Reply to the appeal was filed by respondent no. 1. Appeal filed, has been opposed interalia has been opposed on the ground that no such appeal U/s 37 (2) of the Arbitration and Conciliation Act, 1996 is maintainable. It is also the stand of respondent no. 1 that agreement was between respondent no. 1 and M/s. Kanshi Ram Bansal, through its Managing Partner Kanshi Ram Bansal, whereas the appeal has been filed by Kanshi Ram Bansal in its individual capacity. Objection is also taken on the ground that M/s. Kanshi Ram Bansal is not a registered firm and appeal filed is not maintainable, in view of provisions of section 69 (2) of the Partnership Act.
4. Rejoinder was filed by the appellant.
5. Arguments were heard on behalf of both appellant and respondent no.
1. Respondent no. 1 has relied upon a decision by Hon'ble Delhi High Court titled as Union of India Vs. M/s. East Coast Boat Builders & Engineers Ltd. AIR 1999 Delhi 44 in support of his contention that appeal U/s 37 (2) of Arbitration and Conciliation Act, 1996, filed by the appellant is not maintainable. In the case being relied upon, it was held by Hon'ble High Court that in a case where the Arbitral Tribunal decides the issue of jurisdiction in its favour U/s 16 (5) of the Act and Rules that the disputes raised in the claim petition are triable, the petition U/s 34 (2) (iv) of the Act is not maintainable, as no appeal is ARB No. 31/12 Page 3 of 4 Kanshi Ram Bansal Vs. Puneet Mehta & Anr.
provided under the Act against such order and the order is not an interim award.
6. As per section 37 (2) (a) of Arbitration and Conciliation Act, an appeal lie to a court from an order of Arbitral Tribunal, when the plea referred to in subsection (2) or subsection (3) of section 16 of the Act, is accepted.
7. Section 16 (2) of the Arbitration and Conciliation Act refers to a situation where a plea is made before the Arbitral Tribunal that it does not have the jurisdiction and section 16 (3) of the Arbitration and Conciliation Act, provides for the situation when a plea is made that Arbitral Tribunal is exceeding the scope of its authority. In the present case respondent no. 2/ the arbitrator has not accepted the plea of the appellant that he does not have jurisdiction in the matter and so, appeal against such an order is not maintainable U/s 37 (2) of the Arbitration and Conciliation Act. The appeal filed is not maintainable and same is dismissed accordingly.
Announced in the open Court (J.P.S. MALIK) on 01.06.2012 ADJ04 : SOUTH DISTRICT All pages signed NEW DELHI ARB No. 31/12 Page 4 of 4 Kanshi Ram Bansal Vs. Puneet Mehta & Anr. ARB. No. 31/12 01.06.2012 Present: None.
Vide separate order of the date, appeal filed is dismissed. File be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 01.06.2012 ARB No. 31/12 Page 5 of 4