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A Task Consultancy Pvt Ltd vs M/S Hi Castle Realtech Pvt Ltd on 19 April, 2022

Author: Anup Jairam Bhambhani

Bench: Anup Jairam Bhambhani

                          $~8
                          *     IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     O.M.P.(I) (COMM.) 286/2021
                                A TASK CONSULTANCY PVT LTD                         ..... Petitioner
                                                   Through:     Mr. Kaushik Kumar Dey, Advocate.

                                                   versus

                                M/S HI CASTLE REALTECH PVT LTD                     ..... Respondent
                                                   Through:     Mr. Vidit Gupta, Advocate.

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

% 19.04.2022 The present petition had been filed by the M/s A Task Consultancy Pvt. Ltd. under section 9 of the Arbitration & Conciliation Act 1996 ('A&C Act'), seeking certain interim measures of protection against M/s Hi Castle Realtech Pvt. Ltd. arising from a contract for construction comprised in Work Order dated 12.11.2018, stated by the petitioner to have been signed and executed on 17.07.2019. For the record, the petitioner's contention that this work order was signed and executed on 17.07.2019 and not on 12.11.2018 is disputed and denied by the respondent.

1. Disputes are stated to have arisen between the parties by reason of termination of the said work order by the respondent vidé termination notice dated 01.06.2021. It is in this respect that the petitioner has raised upon the respondent a claim of about Rs 3 crores.

2. Vidé order dated 31.08.2021, this court had appointed a Local Commissioner to visit the premises and carry-out measurements as required by the petitioner, so as to make an assessment of the work done by the petitioner under the said work order. It appears that for certain reasons, vidé order dated 09.12.2021, the earlier order appointing the Local Commissioner was modified by directing that the Local Commissioner shall be accompanied by a retired Registrar of this court, to ensure that the commission is executed in accordance with the directions issued by this court.

3. It is submitted by learned counsel for the parties, that though the Local Commissioner has since rendered reports dated 06.01.2022 and 12.04.2022, which are on the record, copies thereof have not been supplied to either of the parties. Accordingly, as requested, let the Registry supply copies of the Local Commissioner's reports dated 06.01.2022 and 12.04.2022 to learned counsel for the parties.

4. In the course of submissions made before this court, Mr. Vidit Gupta, learned counsel for the respondent, makes grievance that despite having obtained an order for appointment of Local Commissioner in the present proceedings under section 9, till date the petitioner has taken no steps to commence arbitral proceedings, which is impermissible in view of section 9(2) of the A&C Act, which requires that arbitral proceedings shall be commenced within a period of 90 days upon the court passing "...an order for any interim measure of protection under sub-section (1)...".

5. In response thereto, Mr. Kaushik Kumar Dey, learned counsel for the petitioner, submits that the present petition under section 9 may be Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:21.04.2022 O.M.P.(I) (COMM.) 286/2021 Page 2 of 4 12:16:36 treated as an application under section 11(6) of the A&C Act and an arbitrator may be appointed by the court.

6. Mr. Gupta, has no objection of this course of action.

7. The arbitral mechanism agreed to between the parties is contained in clause 14 of work order dated 12.11.2018, which reads as under:

"14. ARBITRATION:

All disputes, differences whatsoever that may arise between the parties hereto or their executive, representative or permitted assigns or any of them, in regard to these present or subject matter and/or interpretation, shall be referred to the sole arbitrator appointed by mutual consent, venue and seat of the Arbitration will be at New Delhi and the governing and applicable law will be as per as per Arbitration & Conciliation Act. 1996."

8. Accordingly, it is noticed that there is a valid and subsisting arbitration agreement in existence between the parties as comprised in clause 14 above; that disputes have evidently arisen between the parties, none of which appear to be non-arbitrable; and further that, the parties have agreed that the venue and seat of arbitration shall be at New Delhi.

9. In view of the above, as requested by the parties, the parties are referred to arbitration under the aegis of the Delhi International Arbitration Centre ('DIAC'), Delhi High Court, New Delhi, with a direction to the Director, DIAC to appoint a sole arbitrator in the matter, in accordance with the rules and regulations of the DIAC and subject to such arbitrator's fee and arbitration costs, as may be applicable thereunder.

10. The DIAC shall, as per its rules, seek requisite disclosures as required under section 12 of the A&C Act.

11. The petition is accordingly disposed of in the above terms.

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

13. A copy of this order be sent to the Director, DIAC, for information and compliance.

ANUP JAIRAM BHAMBHANI, J APRIL 19, 2022 ds Signature Not Verified Digitally Signed By:SUNITA RAWAT Signing Date:21.04.2022 O.M.P.(I) (COMM.) 286/2021 Page 4 of 4 12:16:36