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M/S Ktc India Pvt. Ltd vs Randhir Brar & Ors on 16 March, 2023

Author: Prateek Jalan

Bench: Prateek Jalan

                            $~31
                            *    IN THE HIGH COURT OF DELHI AT NEW DELHI

                            +      ARB.P. 286/2023

                                   M/S KTC INDIA PVT. LTD.                   ..... Petitioner
                                                  Through: Mr. Amit Gupta, Mr. Harisankar
                                                           Mahapatra, Mr. Shiv Verma,
                                                           Advocates   (Enrolment         No.
                                                           D/946/2002,    Mobile          No.
                                                           9810273846)

                                                              versus

                                   RANDHIR BRAR & ORS.                              ..... Respondents
                                                Through:           Mr. Rahul Kukreja, Advocate for
                                                                   R-1 (Mobile No. 8826233398).
                            CORAM:
                            HON'BLE MR. JUSTICE PRATEEK JALAN

                                                    ORDER

% 16.03.2023 I.A. 5110/2023 (for exemption) Exemption allowed, subject to all just exceptions. This application stands disposed of.

1. The present petition under Section 11 of the Arbitration and Conciliation Act, 1996 ["the Act"], has been filed for appointment of an arbitrator to adjudicate disputes between the parties under a Shareholders Agreement dated 20.07.2018 ["the Agreement"].

2. Mr. Amit Gupta, learned counsel for the petitioner, has been asked to clarify as to whether all the parties to the Agreement are nationals of India and habitually resident in India. He states that respondent No.5 is Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.03.2023 11:18:29 ARB.P.286/2023 Page 1 of 2 not a national of India. In these circumstances, it appears to me prima facie that the proposed arbitration would fall within the definition of an "International Commercial Arbitration" under Section 2 (1)(f) of the Act and a petition under Section 11 of the Act would lie only before Supreme Court.

3. Mr. Gupta relies upon a decision of the Supreme Court in L&T- SCOMI vs. MMRDA, (2019) 2 SCC 271 to submit that the respondents must, in fact, be treated as association or body of individuals whose management and control is exercised in India and Section 2(1)(f)(i) of the Act would, therefore, not apply.

4. It is apparent from the aforesaid judgment that the judgment turned on the facts of the case wherein it was found that the concerned entities had formed an unincorporated association. The Supreme Court also noticed a judgment of the Bombay High Court dated 20.10.2016 between the same parties to this effect. Mr. Gupta's contention, therefore, requires a factual determination. He is at liberty to place an additional affidavit on record to this effect, if required, within two weeks.

5. Mr. Gupta also submits that certain imputations against counsel have been incorporated in the petition which were already expunged by orders of the Court in proceedings under Section 9 of the Act. He seeks permission to withdraw those averments. The petitioner may make the necessary statements in the additional affidavit to be filed.

6. List on 09.05.2023.

PRATEEK JALAN, J MARCH 16, 2023/'vp'/ Signature Not Verified Digitally Signed By:SHITU NAGPAL Signing Date:17.03.2023 11:18:29 ARB.P.286/2023 Page 2 of 2