K. K. Modi Investment And ... vs Apollo International & Ors.
2009 Latest Caselaw 3117 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 FAO(OS) 245/2009 & CM No. 8455/2009

%                                        Date of decision: 11th August, 2009

       K. K. MODI INVESTMENT AND FINANCIAL SERVICES P.LTD.
                                                               ..... Appellant
                        Through: Mr. Jayant Bhushan, Senior Advocate with
                        Mr. Pravin Bahadur, Mr. Shanmuga Patro, Ms. Kanika
                        Gomber, Ms. Mallika Joshi, Mr. Rajat Bhardwaj and
                        Mr. Rajan Narain, Advocates.

                           Versus

       APOLLO INTERNATIONAL & ORS.                        ..... Respondents
                      Through: Mr. Dhruv Wahi, Mr. K.V. Singh,
                      Mr. Manish, Advocates for Respondent Nos. 2, 3 and 4.

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL

1.     Whether Reporters of the local newspapers may be allowed to see the
       judgment?                                                No
2.     Whether to be referred to the Reporter or not?           No
3.     Whether the judgment should be reported in the Digest? No

                             JUDGEMENT

MUKUL MUDGAL, J. (ORAL)

1. This appeal arises against the order of the learned Single Judge

dated 25th May, 2009 passed in OMP No. 292 of 2009. The learned

Single Judge has concluded that there was no arbitration agreement

between the appellant herein and respondent Nos. 2, 3 and 4. The

learned Single Judge accordingly held that application under Section

9 of the Arbitration and Conciliation Act, 1996 (hereinafter to be

referred as „the Act‟) was not maintainable. The learned Single Judge

also held that the findings made by him in its order dated 25th May,

2009 would not preclude the appellant/petitioner from seeking

remedies against the respondents under appropriate law.

2. We have heard the learned senior counsel appearing for the

appellant.

3. We find no reason to differ from the findings of the learned

Single Judge in respect of the maintainability of the application under

Section 9 of the Act which is correctly based upon the interpretation of

Section 7 of the Act. We are also of the considered opinion that in

view of the observations of the Hon‟ble Supreme Court in the case of

Sukanya Holdings (P) Ltd. vs. Jayesh H. Pandya & Anr. (2003) 5

SCC 531, the learned Single Judge‟s findings on this score cannot be

faulted.

4. Mr. Bhushan, learned senior counsel appearing for the

appellant/petitioner seeks leave to withdraw this appeal and indeed

the application under Section 9 of the Act filed before the learned

Single Judge as he wishes to file a civil suit. He has submitted that

the observations made in the said judgment should not come in the

way of the matters sought to be raised by him in the suit.

5. Learned counsel for the respondent has, however, submitted

that the application under Section 9 of the Act having been decided on

merits, there is no need for any clarification as sought by the

appellant‟s counsel while withdrawing the appeal.

6. Indeed the learned Single Judge in the impugned judgment

dated 25th March, 2009 has observed as follows:-

"This however, would not preclude petitioner from seeking remedies against respondents under appropriate law."

7. We are of the view that the learned Single Judge himself gave an

observation in favour of the appellant permitting them to seek

remedies against the respondents under appropriate law. It is also

evident that the observations and findings were made by the learned

Single Judge only in the context of the maintainability of the

application under Section 9 of the Act.

8. The appeal is accordingly dismissed as withdrawn and stands

disposed of. The pending application stands disposed of as well.

MUKUL MUDGAL [JUDGE]

NEERAJ KISHAN KAUL [JUDGE] AUGUST 11, 2009 sb