Delhi High Court - Orders
Samyak Projects Private Limited vs Ansal Properties And Infrastructure ... on 8 May, 2024
Author: Prateek Jalan
Bench: Prateek Jalan
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 287/2022
SAMYAK PROJECTS PRIVATE LIMITED ..... Petitioner
Through: Mr. Vivek Kohli, Sr. Adv. with
Mr. Siddhant Puri and Ms. Bhavya
Bhatia, Advocates.
versus
ANSAL PROPERTIES AND INFRASTRUCTURE
LIMITED ..... Respondent
Through: Mr. Pulkit Deora and Mr. Shivam
Nayyar, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 08.05.2024 I.A. 8111/2024 (by respondent for modification of order dated 10.10.2022)
1. The respondent has filed this application for vacation/modification of an order dated 10.10.2022, passed by this Court in the captioned petition under Section 9 of the Arbitration and Conciliation Act, 1996 ["the Act"].
2. The petition was filed in anticipation of arbitral proceedings under a Memorandum of Understanding ["MOU"] dated 06.01.2022, read with an Addendum dated 03.02.2020. The petition was disposed of with the following directions, which were made with the consent of learned counsel for the parties:
"a. The disputes between the parties under the MoU, and the O.M.P.(I) (COMM.) 287/2022 Page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:17:42 Addendum, are referred to arbitration of Hon'ble Mr. Justice D.K. Jain, a former Judge of the Supreme Court of India [Tel: +91- 9999922288].
b. At the suggestion of learned counsel for the parties, the learned Arbitrator is requested to determine his fees in a preliminary hearing, as laid down by the Supreme Court in its judgment dated 30.08.2022, in Arbitration Petition (Civil) No. 05 of 2022 [Oil and Natural Gas Corporation Ltd. vs. Afcons Gunanusa JV.] c. The learned Arbitrator is requested to furnish a declaration in terms of Section 12 of the Act prior to entering into the reference. d. The respondent will file a reply to the application under Section 17 of the Act within one week after the learned Arbitrator enters into the reference.
e. The parties state that they will request the learned Arbitrator to schedule a hearing at his earliest convenience, and that they will cooperate in the expeditious disposal of the application under Section 17 of the Act.
f. Learned counsel for the parties assure the Court that neither of the parties will create any third-party interests in the subject property until the learned Arbitrator has had an opportunity to consider the application under Section 17 of the Act.
g. It is made clear that the parties are free to agitate their rights and contentions as far as the interim measures of protection are concerned before the learned Arbitrator, including with regard to the continuation/variation/modification/vacation of the present order. h. All rights and contentions of the parties, on maintainability, arbitrability of the claims under the MoU, and on merits, are left open for adjudication by the learned Arbitrator."
[Emphasis supplied.]
3. The learned Arbitrator entered into the reference and passed an order dated 29.10.2022. An order was passed on the application under Section 17 of the Act, granting further time for completion of pleadings. The interim order made by this Court was continued until the next sitting.
4. Although the next sitting of arbitration had been scheduled for 19.11.2022, the learned Arbitrator was informed that the National Company Law Tribunal, by an order dated 16.11.2022 in (IB)-
O.M.P.(I) (COMM.) 287/2022 Page 2 of 4This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:17:42 330(ND)/2021, had commenced Corporate Insolvency Resolution Process against the respondent herein. In view of the moratorium thus imposed, the learned Arbitrator issued an order dated 16.11.2023, adjourning the arbitration sine die with liberty to the parties to have the same revived as and when so advised.
5. The present application has been filed for vacation of the order or for clarification that the order of this Court dated 10.10.2022 does not come in the way of the Resolution Process in respect of the respondent - company.
6. I have heard Mr. Pulkit Deora, learned counsel for the respondent - applicant and Mr. Vivek Kohli, learned Senior Counsel for the petitioner.
7. Mr. Kohli submits that the application is not maintainable as the order of this Court dated 10.10.2022 has worked itself out. He submits that the learned Arbitrator entered into the reference and passed the order dated 29.10.2022. He further submits that the moratorium under the Insolvency and Bankruptcy Code, 2016, applies only in respect of proceedings against the corporate debtor, and the respondent's remedies before the Arbitral Tribunal, including for vacation of the order, remain open.
8. Leaving the second question open for a decision of the Tribunal in the event it is approached for such relief, I am of the view that Mr. Kohli's first submission is merited. The order of this Court dated 10.10.2022 was a pro-tem arrangement until the learned Arbitrator had an opportunity to consider the application under Section 17 of the Act. The parties were granted liberty to agitate their contentions, including with regard to continuation, variation, vacation and modification of the order O.M.P.(I) (COMM.) 287/2022 Page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:17:42 of this Court before the learned Arbitrator. It is the order of the learned Arbitrator dated 29.10.2022, which now holds the field, and not the order of this Court dated 10.10.2022.
9. The application is consequently disposed of, leaving it open to the respondent/applicant to seek appropriate remedies either before the Tribunal or the Court or any other forum as may be available to it in law.
PRATEEK JALAN, J MAY 8, 2024 SS/ O.M.P.(I) (COMM.) 287/2022 Page 4 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 00:17:42