Delhi High Court - Orders
Aryan Infraheight (P) Ltd vs Tdi Infrastructure Limited on 21 December, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 980/2022
ARYAN INFRAHEIGHT (P) LTD ..... Petitioner
Through: Mr.Rajiv Ranjan Mishra, Mr.Saurabh,
Ms.Suruchi Yadav & Mr.Sajin Khan,
Advs.
versus
TDI INFRASTRUCTURE LIMITED ..... Respondent
Through: Mr.Sidharth Arora, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 21.12.2022
1. This petition has been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') praying for appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in respect of the Work Order dated 18.11.2017 for construction of structure for 5 Nos. Blocks (250 Sq. Yards) of 50 Floors at 'E' Block Tuscan Building for TDI City Kundli, Sonepat, Haryana, placed by the respondent on the petitioner.
2. The Work Order contains an Arbitration Agreement between the parties in form of Clause 11 thereof, which is reproduced hereinunder:-
"11. Arbitration ... In case of non-settlement of dispute, action and proceedings arising out of contract the same shall be governed and decided as per Indian arbitration and conciliation Act 1996 with up to date amendments. The sole arbitrator for the same shall be appointed as mutually agreed by both parties. ..."
3. The disputes having arisen between the parties, the petitioner invoked Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:23.12.2022 11:06:49 the Arbitration Agreement vide notice dated 27.04.2022. Having failed to receive a response from the respondent, the petitioner has filed the present petition.
4. It is the case of the respondent that this Court would lack territorial jurisdiction to entertain the present petition, inasmuch as the Work Order was in relation to construction of a structure at Sonepat, Haryana.
5. It is further contended that before invoking arbitration, the petitioner was to undertake dispute resolution process as provided in Clause 10 of the Work Order, which has not been followed by the petitioner.
6. The respondent opposes the appointment of an arbitrator also on the ground that the invocation of arbitration by the petitioner is not proper, inasmuch as the petitioner has, in its notice dated 27.04.2022, unilaterally appointed an Arbitrator.
7. The learned counsel for the respondent further submits that, in fact, the Arbitrator sought to be appointed by the petitioner is already acting as an Arbitrator in other disputes where the petitioner is a party.
8. I have considered the objections raised by the learned counsel for the respondent, however, find no merit in the same.
9. Though in relation to construction of a structure at Sonepat, Haryana, the Work Order and the present petition is not for a relief with respect to an immovable property as prescribed in Section 16 of the Code of Civil Procedure, 1908 (in short 'CPC'). The present petition shall, therefore, be governed by Section 20 of the CPC, which, inter alia, provides that the suit/petition can be filed at a place where the cause of action or part thereof arises or the defendant/respondent reside or work for gain. In the present case, not only the respondent has its registered office at Delhi, but also it is Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:23.12.2022 11:06:49 the case of the petitioner that the Work Order in question was issued at Delhi. Therefore, part of cause of action has arisen in Delhi and the respondent is also at Delhi. In terms of Section 20 of the CPC, therefore, this Court shall have territorial jurisdiction to adjudicate on the present petition.
10. As far as the objection with regard to the petitioner not having followed the dispute resolution process as required in Clause 10 of the Work Order, Clause 10 of the Work Order is reproduced hereinunder:-
"10. Dispute Resolution Any differences and/ or claims arising out of in any way touching/or concerning the same or as to constructions, meaning or effect hereof as to the right and liabilities hereunder shall be referred to Chairman & Managing Director- TDI Infratech for Dispute Resolution."
11. The petitioner, before invoking the Arbitration Agreement, had addressed various e-mails to the respondent making the claim and seeking resolution thereof from the respondent. Merely because they have not been addressed to the Chairman and Managing Director of the respondent, in my opinion, would not amount to the petitioner not having tried the dispute resolution process as required in Clause 10 of the Work Order. The respondent could also have referred the claim of the petitioner to its own Chairman and Managing Director. The onus of Clause 10 is on both the parties and not the petitioner alone. The petitioner therefore, cannot be denied appointment of an Arbitrator on this ground.
12. On the objection of the respondent, that the invocation of the Arbitration Agreement is improper inasmuch as the petitioner has proceeded to appoint an Arbitrator unilaterally and that too someone who is already acting as an Arbitrator in other proceedings for the petitioner, I again find no Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:23.12.2022 11:06:49 merit. The petitioner in its invocation letter dated 27.04.2022, did indeed name the Arbitrator. The same could not have been agreed or opposed by the respondent, in case the respondent would have chosen to give a reply to the notice. However, the respondent did not choose to give any reply to this letter nor proposed another Arbitrator to be appointed. In any case, the petitioner realizing its folly has filed the present petition and has not insisted upon the named person to act as an Arbitrator. It has prayed for this Court to appoint an Arbitrator on this petition.
13. As the existence of the Arbitration Agreement is not disputed, I see no impediment in appointing an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the abovementioned Work Order.
14. I accordingly appoint Ms.Sukhbeer Kaur Bajwa, Advocate (Mobile:
9818040158) as a Sole Arbitrator.
15. At the request of the learned counsels for the parties, the parties are also referred to the Delhi International Arbitration Centre (in short 'DIAC') for further proceedings of arbitration. For this purpose, the parties shall appear before the Coordinator of DIAC on 6th January, 2023 at 2:00 PM. The parties and the Arbitrator shall be governed by the DIAC Rules, including its fee structure.
16. The petition is allowed in the above terms.
NAVIN CHAWLA, J DECEMBER 21, 2022/rv/am Signature Not Verified Digitally Signed By:RENUKA NEGI Signing Date:23.12.2022 11:06:49