The Motor And General Finance Ltd. vs Mrs. Licidian And Anr.
2005 Latest Caselaw 1625 Del

JUDGMENT

Badar Durrez Ahmed, J.

IA No. 6872/2005 in CS(OS) No. 595A/1995

1. This is an application under Order VI Rule 17 CPC seeking amendment of the petition under Section 20 of the Arbitration Act, 1940 (hereinafter referred to the `said Act'). The amendment sought is with regard to the name of the Sole Arbitrator appearing in the prayer clause. On 02.09.2005, this Court had directed the issuance of notice to the respondents through ordinary process as well as through Registered AD cover, returnable on 30.11.2005. However, that notice could not issue on account of some defects in the filing of process fee. Mr. Bahadur, learned counsel for the petitioner submits that issuance of notice to the respondents would not be necessary inasmuch as the respondents have already been directed to be proceeded with ex parte by virtue of the order dated 27.11.2001. The order of 27.11.2001 came to be passed because the respondents were not being served in the ordinary manner and the petitioner had to take recourse to Order V Rule 20 for serving the respondents by way of substituted service. Despite the service of the respondents in this manner, the respondents did not feel it necessary to appear in these proceedings and it is in this circumstances, that order dated 27.11.2001 came to be passed. It is the contention of the learned counsel for the petitioner that in point of fact, no further notice would be necessary to the respondents as the change that is sought by him is merely a typographical error as the name of the Sole Arbitrator has been incorrectly given in the prayer clause. The hire purchase agreement which is Annexed to the affidavit in evidence clearly indicates that the named Arbitrator was not the person as indicated in the original prayer clause and, in fact, was one Mr. Surya Kant Singla, Advocate, having his office at Chamber No. 201, Delhi High Court, New Delhi. The name of Shri Surya Kant Singla appears as the named Arbitrator in clause (VI) of the agreement being Exhibit PW1/2.

2. I agree with the submissions made by the learned counsel for the petitioner that issuance of notice in such a case would be an exercise in futility and would only delay the proceedings further. This petition was filed as far as back in 1995 and it took almost seven years to serve the respondents and if this process is initiated once again, it might take six to seven years before the respondents are served. Therefore, I agree with the counsel for the petitioner that such a modality would be an exercise in futility, particularly, because the amendment sought is merely a correction of typographical error. Accordingly, the amendment is allowed.

3. The amended petition is taken on record. This application stands disposed of.

CS(OS) No. 595A/1995

1. This petition was filed as far as back in 1995 under Section 20 of the Arbitration Act, 1940 (hereinafter referred to as the `said Act'). The respondents were directed to be proceeded with ex parte by virtue of an order dated 27.11.2001. Thereafter, the petitioner has filed his evidence affidavit as well as other documents which have been exhibited as Exhibits PW1/1 to PW1/3. I have seen exhibit PW1/1 which is the original hire purchase agreement dated 2.2.1988 between the petitioner and the respondents. That agreement contains an arbitration clause being clause (VI) thereof in which it is indicated that all disputes are to be referred to the sole arbitration of Shri Surya Kant Singla, Advocate, Delhi High Court or in the case of his death, refusal, neglect, incapability to act as an Arbitrator to the sole arbitration of Shri D.L. Bhargava, Advocate, Delhi High Court. The disputes have arisen between the parties as indicated in para 9 of the petition and there being an arbitration clause in the agreement which governs the relationship between the parties, there is no difficulty in an order being passed under Section 20 of the said Act. Accordingly, the said arbitration clause being clause (VI) of Exhibit PW1/2 is directed to be filed in Court and it is ordered that the disputes between the parties be referred for arbitration by the Sole Arbitrator, Shri Surya Kant Singla, Advocate, who has his office at Chamber No. 201, Delhi High Court, New Delhi.

2. This petitions stands disposed of.