Delhi High Court - Orders
M2K Entertaninment Pvt Ltd Anr & Anr vs North Delhi Metro Mall Pvt Ltd & Anr on 16 February, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) (COMM.) 342/2023
M2K ENTERTANINMENT PVT LTD ANR & ANR.
..... Petitioners
Through: Mr. Sanjeev Sindhwani, Sr. Advocate
with Mr. Amit Agarwal, Mr. Saurabh
Kumar and Mr. Gaurav Sindhwani,
Advocates.
versus
NORTH DELHI METRO MALL PVT LTD & ANR.
..... Respondents
Through: Mr. Amit Sibal, Sr. Advocate with
Mr. Hardeep Sachdeva, Mr. Abhishek
Awasthi, Mr. Kamal Shankar, Mr.
Abhyudai Singh, Mr. Pradyumna
Sharma, Ms. Swati Sharma, Mr.
Arjun Narang and Mr. Maaz Ahmad,
Advocates for R-1.
Mr. Akhil Sachar, Advocate for R-2
via video-conferencing.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 16.02.2024 I.A. 3539/2024 and I.A. 3700/2024 By way of application bearing I.A No. 3539/2024, the petitioners seek disposal of the petition filed under section 9 of the Arbitration & Conciliation Act 1996 ('A&C Act') by referring it as an application under section 17 of the A&C Act to the learned Sole Arbitrator who is seized of the disputes between the parties, in terms as set-out in para 7 of this application.
This is a digitally signed order. O.M.P.(I) (COMM.) 342/2023 Page 1 of 5The 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 01/03/2024 at 21:17:26
2. By way of the other application bearing I.A. No. 3700/2024, the respondents seek that the petition filed under section 9 of the A&C Act be referred as an application under section 17 of the A&C Act to the learned Sole Arbitrator on the basis of what is stated in para 9 of this application.
3. In view of the prayers made in the aforesaid applications, it is not considered necessary to issue formal notice on these two applications.
4. Mr. Sanjeev Sindhwani, learned senior counsel appearing for the petitioners and Mr. Amit Sibal, learned senior counsel appearing for the respondent No. 1 have been heard at considerable length.
5. Mr. Akhil Sachar, learned counsel for the respondent No. 2 has also joined via video-conferencing; but says that he has no submissions to make on these applications.
6. Having heard learned senior counsel for the parties, while it is clear that both parties are agreeable to the present petition under section 9 of the A&C Act being sent to the learned Sole Arbitrator, to be decided as an application under section 17 of the A&C Act, there are certain directions that the parties have prayed-for prior to the matter being so referred.
7. While Mr. Sindhwani submits that interim order dated 19.10.2023 passed in the present proceedings be continued till the adjudication of the application under section 17 of the A&C Act by the learned Sole Arbitrator, Mr. Sibal argues that the interim order granted on 19.10.2023 be vacated, leaving the learned Sole Arbitrator to decide the application under section 17 of the A&C Act as he may deem appropriate.
This is a digitally signed order. O.M.P.(I) (COMM.) 342/2023 Page 2 of 5The 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 01/03/2024 at 21:17:26
8. Mr. Sibal urges that order dated 19.10.2023 was made ex-parte and respondent No. 1 has not been heard in relation to that order till date. Mr. Sindhwani, however, disputes this submission, to say that respondent No. 1 has been heard at considerable length.
9. At this point, it is beneficial to extract the operative portion of the order dated 19.10.2023 made in the matter, which reads as follows:
"10. Considering the submissions made by the learned senior counsel for the petitioners, the respondents are directed to comply with the provisions of Clause-1(i) of the aforesaid agreement dated 06.09.2006 and supply all the applicable approvals/no objection certificate/s obtained by the respondents from the different regulatory authorities to the petitioners, within a period of one week from today.
"11. Also, in view of Clause 11 of the agreement dated 6.9.2006, till the next date of hearing, the respondents are restrained from allotting to any other person/party (other than the petitioners) any other space in the Mall to be used for or operated as Multiplex/Cinema/IMAX Theatre."
(emphasis supplied)
10. Mr. Sibal submits that there is no reason why the mandatory direction contained in para 10 of order dated 19.10.2023 should continue, since the obligation of respondent No. 1 to supply to the petitioner any approvals and no-objection certificates is a disputed question, which the learned Arbitrator must decide on merits before any direction can be issued to that effect.
11. Insofar as the direction contained in para 11 of order dated 19.10.2023 is concerned, it is Mr. Sibal's contention that respondent No. 1 is willing to make a statement that they would not sub-lease the 06 This is a digitally signed order. O.M.P.(I) (COMM.) 342/2023 Page 3 of 5 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 01/03/2024 at 21:17:26 additional screens at the Multiplex in question to any third party, restricted to the IMAX at Sight-I situate on the South of the Metro Deck. He submits that the statement may be taken on record, and the direction contained in para 11 be vacated, leaving respondent No. 1 to raise all its rights and contentions before the learned Sole Arbitrator.
12. Mr. Sibal further submits that respondent No. 1 would also reserve its right that if during the pendency of the application under section 17 of the A&C Act, respondent No. 1 wishes to execute any sub-lease deed for 05 screens at Sight-II of the IMAX situate on the North of the Metro Deck, they would intimate the petitioner of the same one week in advance.
13. Having heard learned senior counsel at considerable length, and since in essence, both parties are ad-idem that the present petition is required to now be referred as an application under section 17 of the A&C Act to be decided by learned Sole Arbitrator, the course of action that commends itself for acceptance to this court is the following :
13.1. The present petition under section 9 of the A&C Act along with I.A. No. 21523/2023 filed by respondent No. 1 under Order XXXIX Rule 3 & 4 of Code of Civil Procedure 1908 is referred to the learned Sole Arbitrator as an application under section 17 of the A&C Act, to be decided by him, as expeditiously as possible, in accordance with law.
13.2. Either party may approach the learned Sole Arbitrator to have the present petition under section 9 taken-up as an application under section 17 of the A&C Act expeditiously.This is a digitally signed order. O.M.P.(I) (COMM.) 342/2023 Page 4 of 5
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 01/03/2024 at 21:17:26 13.3. Order dated 19.10.2023 is modified to the extent that the direction contained in para 10 thereof, being in the nature of a mandatory direction, which was admittedly issued without hearing respondent No. 1, stands recalled; while at the same time, continuing the direction contained in para 11 of order dated 19.10.2023 till the first date on which the application under section 17 of the A&C Act is heard by the learned Sole Arbitrator.
14. Needless to add that all rights and contentions of both parties are left open; and parties shall be at liberty to seek any interim relief as they may be advised, in accordance with law, without being restricted to the relief that was sought by way of the present petition.
15. Further, it is clarified that this court has not expressed any opinion on any aspect of the merits of the matter.
16. Both the applications are allowed and disposed-of, in the above terms.
17. Petition bearing O.M.P.(I) (COMM.) No. 342/2023 as well as CCP (O) No. 93/2023 also stand disposed-of.
18. Other pending applications, if any, also stand disposed-of.
19. The date of 04.04.2024 given earlier, stands cancelled.
ANUP JAIRAM BHAMBHANI, J FEBRUARY 16, 2024/MR This is a digitally signed order. O.M.P.(I) (COMM.) 342/2023 Page 5 of 5 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 01/03/2024 at 21:17:26