Delhi High Court - Orders
Nyeq Technologies Private Limited vs Thor Ventures (Opc) Private Limited on 15 February, 2023
Author: Prateek Jalan
Bench: Prateek Jalan
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. (T) (COMM.) 1/2023, I.As. 149/2023, 151/2023
NYEQ TECHNOLOGIES PRIVATE LIMITED ..... Petitioner
Through: Mr. Sahil Sethi, Mr. Kanishk
Kumar, Ms. Abhit Vachher, Ms.
Ramya Aggarwal, Mr. Priyansh
Kohli, Advocates.
versus
THOR VENTURES (OPC) PRIVATE LIMITED ..... Respondent
Through: Mr. Rajiv Bajaj, Advocate
[9810806325].
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 15.02.2023
1. The present petition under Section 14 of the Arbitration and Conciliation Act, 1996 ["the Act"] has been filed seeking termination of the mandate of the learned Arbitrator who is in seisin of disputes between the parties under two agreements to sell, both dated 04.05.2019. One agreement to sell is in respect of property bearing No. A-21, DLF City, Phase-1, DLF Qutub Enclave, Tehsil and District- Gurgaon, Haryana and other is in respect of property bearing No. B-74, DLF City, Phase-1, DLF Qutub Enclave, Teshil and District- Gurgaon, Haryana.
2. Disputes having arisen between the parties, the respondent herein invoked the arbitration clauses by legal notices dated 08.02.2021, and Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (T) (COMM.) 1/2023 Page 1 of 4 Signing Date:16.02.2023 11:10:31 appointed Mr. Rajat Bhalla, Advocate, as the Arbitrator to conduct proceedings in relation to both the agreements to sell.
3. The learned Arbitrator entered into the reference, and passed an ex parte order dated 11.02.2021 under Section 17 of the Act in favour of the respondent-claimant.
4. In the meanwhile, by way of an application dated 16.09.2022 under Section 12(5) of the Act, the petitioner herein requested the learned Arbitrator to recuse himself from the arbitral proceedings, on account of his ineligibility to act as the Arbitrator, due to his appointment by the respondent unilaterally. By an order dated 24.11.2022, the learned Arbitrator rejected this application, holding inter alia that the petitioner had waived its right to object to the unilateral appointment of the learned Arbitrator. This has led to the filing of the present petition.
5. Notice in this petition was issued on 10.01.2023, pursuant to which Mr. Rajiv Bajaj, learned counsel for the respondent, enters appearance.
6. I have heard Mr. Sahil Sethi, learned counsel for the petitioners, and Mr. Bajaj.
7. Mr. Bajaj accepts the legal position that, in view of the judgment of the Supreme Court in TRF Ltd. vs. Energo Engineering Projects Ltd. (2017) 8 SCC 377 and Perkins Eastman Architects DPC & Anr. vs. HSCC (India) Ltd. (2020) 20 SCC 760, and several other decisions of the Supreme Court and this Court following these judgments, the unilateral appointment of an arbitrator is impermissible. He, therefore, consents to termination of the mandate of the learned Arbitrator and appointment of an independent arbitrator in both the arbitral proceedings. However, he submits that the delay in raising of this objection and in filing of the Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (T) (COMM.) 1/2023 Page 2 of 4 Signing Date:16.02.2023 11:10:31 present petition by the petitioner, has resulted in proceedings having progressed before the learned Arbitrator until the stage of recording of evidence of the claimant/respondent herein's first witness. He, therefore, submits that the proceedings may be taken up by the substitute arbitrator from the stage at which they were before the erstwhile Arbitrator.
8. Although this suggestion was initially contested by Mr. Sethi, during the course of hearing, a consensus has emerged between learned counsel for the parties, and the petition is disposed of in terms thereof, with the following directions: -
a. The mandate of the learned Arbitrator, who is in seisin of disputes between the parties under the two agreements to sell dated 04.05.2019, is terminated.
b. Hon'ble Mr. Justice Jayant Nath, a former Judge of this Court [Tel:
8527959494] is appointed as the Arbitrator in both the arbitral proceedings to adjudicate disputes between the parties under the agreements to sell dated 04.05.2019.
c. The arbitrations will be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Shershah Road, New Delhi ["DIAC"], and will be subject to the Rules of DIAC, including as to remuneration of the learned Arbitrator. The references under the two agreements will be treated as separate references.
d. The learned Arbitrator is requested to furnish a declaration under Section 12 of the Act, prior to entering upon the reference. e. Learned counsel for the parties will jointly obtain the entire arbitral record from the erstwhile Arbitrator, and file the same before Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (T) (COMM.) 1/2023 Page 3 of 4 Signing Date:16.02.2023 11:10:31 DIAC as expeditiously as possible.
f. Mr. Sethi has pointed out that the application under Section 17 of the Act filed by the respondent/claimant remains pending. The petitioners herein are at liberty to file a reply to the application within ten days or immediately upon the learned Arbitrator entering into the reference, whichever is later. The parties may request the learned Arbitrator to fix an early date of hearing to hear the application under Section 17 of the Act. It is made clear that the parties are at liberty to agitate their respective rights and contentions on the application under Section 17 of the Act, including on the question of ad interim orders before the learned Arbitrator appointed today. The learned Arbitrator is requested to take a decision in accordance with law, uninfluenced by the order dated 11.02.2021 passed by the erstwhile Arbitrator. g. Mr. Sethi states that the petitioner herein did not cross-examine PW-1 as the authority of the learned Arbitrator was under
challenge. In view of the present order, it is made clear that PW-1 may be recalled for cross-examination as per the schedule to be fixed by the learned Arbitrator appointed today. h. It is made clear that all rights and contentions of the parties are left open for adjudication by the learned Arbitrator.
9. The petition stands disposed of with these directions.
PRATEEK JALAN, J FEBRUARY 15, 2023 'Bhupi'/ Signature Not Verified Digitally Signed By:SHITU NAGPAL O.M.P. (T) (COMM.) 1/2023 Page 4 of 4 Signing Date:16.02.2023 11:10:31