Delhi High Court - Orders
Bhatia Finvest Pvt. Ltd vs Rakesh Kumar Gupta on 2 December, 2022
Author: Vibhu Bakhru
Bench: Vibhu Bakhru
$~1 (Single Bench)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ OMP(ENF.)(COMM.)146/2019 and EX.APPL.(OS)
3748/2022
BHATIA FINVEST PVT. LTD. ..... Decree Holder
Through: Mr Puneet Khurrana and Ms
Pratibha Varun, Advocates.
versus
RAKESH KUMAR GUPTA ..... Judgment Debtor
Through: Mr Amit George, Mr Aditya
Nayyar, Mr Anubhav Saxena,
Mr Rayadurgam Bharat, Mr
Amol Acharya, Mr Piyo Harold
Jaimon and Mr Arkaneil
Bhaumuk, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 02.12.2022 REVIEW PET. 326/2022
1. The applicant (judgment debtor) has filed the present application seeking review of an order dated 04.05.2022, whereby the applicant's objection against enforcement of the arbitral award dated 15.02.2019, was rejected. The applicant had opposed the enforcement on the sole ground that the sole arbitrator was unilaterally appointed by the petitioner.
2. This Court had rejected the said contention on two grounds. First, it was not permissible for this Court to go behind the arbitral award and examine the challenge to the said award in these proceedings. And second, that the arbitral award was, concededly, a consent award.
3. Mr George, learned counsel appearing for the applicant submits Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:05.12.2022 that the question as to whether an arbitrator was validly appointed and was eligible to make an arbitral award could be considered even at the stage of enforcement of the award. He referred to the decision of a Co- ordinate Bench of this Court in Khanna Traders v. Scholar Publishing House Pvt. Ltd. & Ors.: 2017 SCC OnLine Del 7684 in support of his contention.
4. The said decision is not applicable in the facts of the present case. In that case, the court found there was no arbitration agreement between the Decree Holder (DH) and Judgement Debtors Nos. 2 to 5 (the JD nos. 2to5). Further the DH had not sought reference of disputes against the said JDs. Clearly, the arbitral award against the said JDs was wholly without jurisdiction. Thus, it could not be not be considered as an arbitral award and enforced as such.
5. In the present case, there is no dispute that the parties had entered into an arbitration agreement and the arbitrator was appointed in terms of the arbitration agreement. The question sought to be raised is regarding the ineligibility of the Arbitrator. In a larger perspective, the said question does not arise as the award is a consent award. Even in cases, where parties refer the disputes to conciliation (where the question of ineligibility of the Arbitrator under Section 12(5) of the Arbitration and Conciliation Act, 1996 does not arise), the consent terms would be enforceable. The nature of a consent award is not completely different from a consensual settlement, which the parties consciously enter into with the object of making the consent terms enforceable under the Arbitration and Conciliation Act, 1996.
6. In this view, this Court finds no ground for reviewing the order dated 04.05.2022.
7. This Court is also of the view that the present petition is yet Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:05.12.2022 another attempt on the part of the applicant to further prolong the proceedings and to dishonestly avoid the commitment to discharge his lability.
8. The review petition is dismissed with cost quantified at ₹20,000/-. The costs shall be deposited with the Delhi High Court Legal Aid Services Committee, within a period of two weeks.
VIBHU BAKHRU, J DECEMBER 2, 2022 RK Signature Not Verified Digitally Signed By:Dushyant Rawal Signing Date:05.12.2022