Delhi High Court - Orders
Asian Hotels (North) Limited vs Alok Kumar Lodha on 29 July, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
$~VC-1 to 8 & 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA (OS) (COMM) 12/2020, C.M. Nos.16942 -16946/2020
ASIAN HOTELS (NORTH) LIMITED ..... Appellant
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
Versus
ALOK KUMAR LODHA ..... Respondent
Through: Dr. Abhishek Manu Singhvi, Senior
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
AND
+ RFA (OS) (COMM) 13/2020, C.M. Nos.16950/2020, 16951/2020 and
16953-16955/2020
ALOK KUMAR LODHA ..... Appellant
Through: Dr. Abhishek Manu Singhvi, Senior
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED ..... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
RFA(OS) (COMM) Nos. 12 to 20/2020 Page 1 of 10
AND
+ RFA (OS) (COMM) 14/2020, C.M. Nos.16964-16968/2020
CHARU LODHA ..... Appellant
Through: Dr. Abhishek Manu Singhvi, Sr.
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED ..... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
AND
+ RFA (OS) (COMM) 15/2020, C.M. Nos.16974-16978/2020
SITAL DASS JEWELLERS ..... Appellant
Through: Dr. Abhishek Manu Singhvi, Sr.
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED .... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
RFA(OS) (COMM) Nos. 12 to 20/2020 Page 2 of 10
AND
+ RFA (OS) (COMM) 16/2020, C.M. Nos.16979-16982/2020
SATISH KHOSLA & ANR. ..... Appellant
Through: Mr. Dhruv Mehta, Senior Advocate
with Mr. Yashraj Singh Deora, Mr.
Anubhav Ray & Ms. Sonal
Mahashankar, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED ..... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
AND
+ RFA (OS) (COMM) 17/2020, C.M. Nos.16983-16987/2020
SWEETY SURI ..... Appellant
Through: Dr. Abhishek Manu Singhvi, Sr.
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED ..... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
RFA(OS) (COMM) Nos. 12 to 20/2020 Page 3 of 10
AND
+ RFA (OS) (COMM) 18/2020, C.M. Nos.16988-16991/2020
DHARAMVIR KHOSLA ..... Appellant
Through: Mr. Dhruv Mehta, Senior Advocate
with Mr. Yashraj Singh Deora, Mr.
Anubhav Ray & Ms. Sonal
Mahashankar, Advocates.
Versus
ASIAN HOTELS (NORTH) LIMITED ..... Respondent
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
AND
+ RFA (OS) (COMM) 19/2020, C.M. Nos.16993-16997/2020
ASIAN HOTELS (NORTH) LIMITED ..... Appellant
Through: Mr. Mukul Rohatgi, Mr. Sidharth
Luthra & Mr. Sandeep Sethi, Sr.
Advocates with Dr. Lalit Bhasin, Ms.
Nina Gupta & Mr. Chirag Nassa,
Advocates.
Versus
SATISH KHOSLA & ANR. .... Respondents
Through: Mr. Dhruv Mehta, Senior Advocate
with Mr. Yashraj Singh Deora, Mr.
Anubhav Ray & Ms. Sonal
Mahashankar, Advocates.
AND
+ RFA (OS) (COMM) 20/2020, C.M. Nos.17000-17004/2020
ASIAN HOTELS (NORTH) LTD ..... Appellant
Through: Mr. Mukul Rohatgi, Senior Advocate
Mr. Sidharth Luthra Senior Advocate
& Mr. Sandeep Sethi, Senior
Advocate with Dr. Lalit Bhasin, Ms.
RFA(OS) (COMM) Nos. 12 to 20/2020 Page 4 of 10
Nina Gupta & Mr. Chirag Nassa,
Advocates.
Versus
SITAL DASS JEWELLERS ..... Respondent
Through: Dr. Abhishek Manu Singhvi, Senior
Advocate with Mr. Avishkar Singhvi,
Mr. Nipun Katyal & Ms. Madhvi
Khanna, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 29.07.2020 C.M. No.16943/2020 (Exemption from filing of court fees), C.M. No.16944/2020 (Exemption from filing certified copy of impugned judgement and order and original, true typed and certified copies of the documents, etc.), C.M. No.16945/2020 (Exemption from filing decree sheet), C.M. No.16946/2020 (Exemption from filing notarised affidavits) in RFA (OS) (COMM) 12/2020) C.M. No.16951/2020 (Exemption from filing certified copy of the impugned judgement and order), C.M. No.16953/2020 (Exemption from filing dim/ illegible/margin and hand written documents), C.M. No.16954/2020 (Extension of time for filing of court fee) & C.M. No.16955/2020 (Exemption from filing notarized affidavit & welfare stamp) in RFA (OS) (COMM) 13/2020 C.M. No.16965/2020 (Exemption from filing certified copy of the impugned judgement and order), C.M. No.16966/2020 (Exemption from filing dim/illegible/margin and hand written documents), C.M. No.16967/2020 (Extension of time for filing of court fee), C.M. No.16968/2020 (Exemption from filing notarized affidavit & welfare stamp) in RFA (OS) (COMM) 14/2020 RFA(OS) (COMM) Nos. 12 to 20/2020 Page 5 of 10 C.M. No. 16975/2020 (Exemption from filing certified copy of the impugned judgement and order), C.M. No. 16976/2020 (Exemption from filing dim/illegible/margin and hand written documents), C.M. No. 16977/2020 (Extension of time for filing of court fee), C.M. No.16978/2020 (Exemption from filing notarized affidavit & welfare stamp) in RFA (OS) (COMM) 15/2020) C.M. No.16980/2020 (Exemption from filing certified copies of the annexures or typed copies of dim annexures), C.M. No.16981/2020 (Exemption from filing attested affidavits), C.M. No. 16982/2020 (Extension of time for filing of court fee) in RFA (OS) (COMM)16/2020 C.M. No.16984/2020 (Exemption from filing certified copy of the impugned judgement and order, C.M. No.16985/2020 (Exemption from filing dim/illegible/margin and hand written documents, annexures or typed copies of dim annexures), C.M. No. 16986/2020 (Extension of time for filing of court fee), C.M. No. 16987/2020 (Exemption from filing notarized affidavit & welfare stamp) in RFA (OS) (COMM)17/2020 C.M. No.16989/2020 (Exemption from filing certified copies of the annexures or typed copies of dim annexures),C.M. No. 16990/2020 (Exemption from filing attested affidavits), C.M. No. 16991/2020 (Extension of time for payment of court fee) in RFA (OS) (COMM) 18/2020) C.M. No.16994/2020 (Extension of time and exemption from filing court fees), C.M. No. 16995/2020 (Exemption from filing certified copy of judgment and order), C.M. No. 16996/2020 (Exemption from filing decree sheet) & C.M. No.16997/2020 (Exemption from filing notarised affidavits) in RFA (OS) (COMM) 19/2020) C.M. No.17001/2020 (Extension of time and exemption from filing of court fees), C.M. No.17002/2020 (Exemption from filing certified copy of impugned judgement and order), C.M. No.17003/2020 (Exemption from filing decree sheet), C.M. No.17004/2020 (Exemption from filing notarised affidavits) in RFA(OS) (COMM) Nos. 12 to 20/2020 Page 6 of 10 RFA (OS) (COMM) 20/2020)
1. The applications for exemptions from filing decree sheets are misconceived, the suits having been disposed of purportedly allowing a plea under Section 8 of the Arbitration and Conciliation Act, 1996 and disposal in terms whereof does not constitute a decree.
2. Else, allowed, subject to just exceptions and as per the extant rules.
3. The applications are disposed of.
RFA (OS) (COMM) 12/2020, C.M. No. 16942/2020 (for stay) RFA (OS) (COMM) 13/2020, C.M. No. 16950/2020 (for ex parte ad interim injunction) RFA (OS) (COMM) 14/2020, C.M. No. 16964/2020 (for ex parte ad interim injunction) RFA (OS) (COMM) 15/2020, C.M. No. 16974/2020 (for ex-parte ad interim injunction) RFA (OS) (COMM) 16/2020, C.M. No. 16979/2020 (for interim relief) RFA (OS) (COMM) 17/2020, C.M. No. 16983/2020 (for ex parte ad interim injunction) RFA (OS) (COMM) 18/2020, C.M. No. 16988/2020 (for interim relief) RFA (OS) (COMM) 19/2020, C.M. No. 16993/2020 (for stay) RFA (OS) (COMM) 20/2020, C.M. No. 17000/2020 (for stay)
4. All these appeals are preferred against the common judgment dated 21st July, 2020 of the Single Judge dismissing the suits filed by the plaintiffs, upon the defendant Asian Hotels (North) Limited invoking Section 8 of the Arbitration & Conciliation Act, 1996; while the plaintiffs are aggrieved from such dismissal of the suits, the defendant Asian Hotels (North) Limited is aggrieved from certain findings in the judgment, on the merits of the matter, though RFA(OS) (COMM) Nos. 12 to 20/2020 Page 7 of 10 ultimately dismissing the suits as well as the applications for interim relief; it is contended that the said observations may prejudice the defendant Asian Hotels (North) Limited in other matters being filed by other occupants of the property as well as in Arbitration.
5. The senior counsels for the defendant Asian Hotels (North) Limited have raised a preliminary objection to the maintainability of the appeals preferred by the plaintiffs. It is contended that under the Arbitration Act read with the Commercial Courts Act, 2015, no appeal lies against an order allowing the plea under Section 8 of the Arbitration Act.
6. Finding it to be recorded in the judgment that no application under Section 8 of the Arbitration and Conciliation Act was filed and the Single Judge, relying on certain judgments, having held that there is no need for an application under Section 8, we have enquired from senior counsels for the defendant Asian Hotels (North) Limited, whether a written statement invoking Section 8 or any other pleading invoking Section 8, was filed.
7. The senior counsels for the defendant Asian Hotels (North) Limited state that the counsel for the defendant Asian Hotels (North) Limited appeared on the very first date when the suit came up for admission and raised the plea of Section 8 and the Single Judge proceeded to hear the counsels on the said plea and has, accepting the said plea, dismissed the suit.
8. Dr. Abhishek Manu Singhvi, senior counsel for the plaintiffs in RFA (OS) (COMM) 12/2020, 13/2020, 14/2020, 15/2020, 17/2020 and 20/2020 states that neither the written statement nor any other RFA(OS) (COMM) Nos. 12 to 20/2020 Page 8 of 10 pleading was filed by the defendant Asian Hotels (North) Limited.
9. In our prima facie view, the use of the expression 'applies' in Section 8(1) and reference to 'the application' in Section 8(2) and pendency of 'the application' and issue not being a bar to arbitrability referred to in Section 8(3), indicate the need for Section 8 being invoked in writing. It also appears that only in defence to such an application, the defence is any available of '......no valid arbitration agreement exists' within the meaning of Section 8(1) can be raisesd.
10. Though the senior counsels for the defendant Asian Hotels (North) Limited have contended that it is pleaded in the plaint itself that there was an arbitration clause and the reasons for the issues arising in the suits being not arbitrable were also pleaded, obviating the need for the defendant Asian Hotels (North) Limited to file an application, but it cannot be lost sight of, that Section 8(1) is not a bar to the maintainability of the suit and is different from Order VII Rule 11 of the Code of Civil Procedure, 1908, which can be urged without even a written statement or an application.
11. If Section 8 of the Arbitration Act has been wrongly invoked, then, in our prima facie view, the same becomes a jurisdictional issue and would also affect the contention as to maintainability of the appeals.
12. The appeals require consideration.
13. Though the senior counsels for the plaintiffs have also opposed the maintainability of the appeals preferred by the defendant Asian Hotels (North) Limited, but all the said questions are also kept open.
14. Admit.
RFA(OS) (COMM) Nos. 12 to 20/2020 Page 9 of 1015. The counsels, on inquiry state that entire suit record has been submitted alongwith the appeals and there is no need for call for the suit records.
16. It is informed that during the pendency before the Single Judge, there was an interim arrangement whereby the defendant Asian Hotels (North) Limited had undertaken not to take any action against the plaintiffs pursuant to the impugned notices. The said interim arrangement to continue.
17. It is also informed that certain other occupants of the property have filed applications under Section 9 of the Arbitration and Conciliation Act and which are pending.
18. None of the observations on merits of the claim in the impugned judgment shall have any bearing on the decision of the applications under Section 9 of the Arbitration Act, already pending, or to be filed, or on any other proceeding entailing the same controversy.
19. List for hearing on 24th September, 2020.
RAJIV SAHAI ENDLAW, J ASHA MENON, J JULY 29, 2020 pkb RFA(OS) (COMM) Nos. 12 to 20/2020 Page 10 of 10