Bombay High Court
Hubtwon Ltd. (Formerly Akruti Nirman ... vs Dlf Universal Ltd. And 2 Others on 28 September, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
Digitally signed
by LAXMI
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LAXMI SUBHASH
SONTAKKE
SUBHASH Date:
SONTAKKE 2022.09.30
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
11:00:34
+0530
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION APPLICATION (L) NO. 25624 OF 2022
DLF Limited ..Applicant
Vs.
Hubtown Limited & Anr. ..Respondents
WITH
COMMERCIAL ARBITRATION PETITION (L) NO. 26116 OF 2022
Hubtown Limited ..Applicant
Vs.
DLF Universal Limited & Ors. ..Respondents
Mr. Janak Dwarkadas, Senior Counsel a/w Kunal Dwarkadas, Harshad
Gada, Aditya Raut & P. Bahadur i/b. Desai Desai Carrimjee & Mulla,
for the Applicant in CARAPL/25624/2022.
Mr. Chetan Kapadia a/w Ayushi Anandpara, Rohaan Pajnigar &
Aneesa Cheema i/b DSK Legal for the Petitioner in
CARBPL/26116/2022.
Mr. Darius Khambatta, Senior Counsel a/w Kunal Dwarkadas, Karan
R., Harshad Gada, Aditya Raut & Pravin Bahadur i/b. Desai Desai
Carrimjee & Mulla for Respondent in CARBPL/26116/2022.
Mr. Nimay Dave a/w Ms. Sonam Mhatre & Mr. Amit Mishra i/b.
Dhaval Bvussonji & Associates for Respondent No.2 in both matters.
Laxmi page 1 of 6
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CORAM:- B. P. COLABAWALLA,J.
DATE :- SEPTEMBER 28, 2022.
P. C.:
1. The above Commercial Arbitration Application (L) No. 25624 of 2022 is filed by the Applicant (DLF Limited) under Section 11 of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act") seeking the constitution of the arbitral tribunal to decide the disputes and differences between the parties that arise out of the Memorandum of understanding (for short "MOU") and the Share Holders Agreement (for short "SHA") both dated 15th April, 2004.
2. The above Commercial Arbitration Petition (L) No. 26116 of 2022 is filed by the Petitioner (Hubtown Limited) under Section 9 of the Arbitration and Conciliation Act, 1996 seeking the various interim reliefs.
3. I must mention that in the present case the disputes really arise between DLF Limited, Hubtown Limited and Chinsha Property Private Limited. The three of them have a joint SHA and MOU in relation to the affairs of the Joyous Housing Limited.
4. The learned Advocates appearing on behalf of DLF Limited, Hubtown Limited and Chinsha Property Private Limited have all stated Laxmi page 2 of 6
34.carap-26324-22..doc before the Court that the disputes arising out the MOU and SHA, both dated 15th April 2004 can be referred to a Sole Arbitrator. They have further stated that even the joint venture company, namely, Joyous Housing Limited would be a party to the arbitration. It has been further stated that the above Section 9 Petition can be converted into an Application under Section 17 of the Arbitration Act which can be heard and decided by the Arbitral Tribunal. All the parties before me have also agreed that the existence and the validity of the arbitration agreement is not in dispute.
5. In view of the aforesaid consensus, the following order is passed:
a) With the consent of the parties, Mrs. Indu Malhotra, a retired Judge of the Supreme Court, is hereby appointed to act as the Sole Arbitrator to decide the disputes and differences between DLF Limited, Hubtown Limited and Chinsha Property Private Limited arising out of and/or in connection with and/or in relation to the MOU and the SHA, both dated 15th April, 2004.
b) A copy of this order shall be communicated to the learned Sole Arbitrator by the Advocates of the DLF Limited within a period of one week from today.
Laxmi page 3 of 6
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c) The learned Sole Arbitrator is requested to forward her Statement of Disclosure under Section 11(8) read with Section 12 (1) of the Arbitration Act to the Advocates of DLF Limited so as to enable them to file the same in the Registry of this Court. The Registry of this Court shall retain the said Statement on the file of the Section 11 Application and a copy of the same shall be furnished by the Advocates of DLF Limited to the Advocates of Hubtown Limited and Chinsha Property Private Limited respectively.
d) The parties shall appear before the learned Sole Arbitrator on such date and at such place as she nominates to obtain appropriate directions with regard to fixing a schedule for completing pleadings, etc. The Arbitral Tribunal shall give all further directions with reference to the arbitration and also as to how it is to proceed. It is agreed that the Claimant before the Arbitral Tribunal shall be DLF Limited.
e) The contact and communication particulars shall be provided by all parties to the learned Sole Arbitrator within a period of one week from today. This information shall include a valid and functional email address as well as the mobile numbers of the respective advocates.
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f) The parties have agreed before me that the Arbitral Tribunal is free to fix its own fees and shall not be bound by the 4 th Schedule of the Arbitration Act or the Bombay High Court (Fee payable to Arbitrators) Rules, 2018. The parties have further agreed that the arbitral costs and the fees of the Arbitrator shall be borne equally by DLF Limited, Hubtown Limited and Chinsha Property Private Limited respectively and will be subject to the final Award that may be passed by the Tribunal.
g) The parties immediately consent to a further extension of six months to complete the arbitration, should the learned Sole Arbitrator find it necessary.
h) The parties have agreed that the the Arbitral Tribunal is free to fix the venue of the arbitration as per the convenience of the Tribunal as well as the parties. However, the seat of the arbitration shall be Mumbai.
6. The above Section 9 Petition shall be treated heard and disposed of by the Arbitral Tribunal as an Application under Section 17 of the Arbitration Act. The learned Sole Arbitrator is requested to dispose of the converted Section 17 Application as expeditiously as possible.
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7. All affidavits filed in the Section 9 Petition shall be treated as affidavits filed in the converted Section 17 Application. If either party wants to file any further affidavit, they may do so, with the leave of the Tribunal. If no such affidavit is filed, the parties are at liberty to file the same before the Arbitral Tribunal.
8. The above Section 11 Application as well as the above Section 9 Petition are disposed of in the aforesaid terms. No order as to costs.
9. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
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