Delhi High Court
M/S.A.P.Diagnostics vs M/S.Birla Medical Technologies & ... on 17 February, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ A.A. No.152/2003
% Date of Decision: 17.02.2009
M/s.A.P.Diagnostics .... Petitioner
Through Mr.Siddharth Yadav, Advocate.
Versus
M/s.Birla Medical Technologies & Ors. .... Respondents
Through Ms.Surbhi Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The learned counsel appearing for the petitioner states that he
has no instructions from his client.
The cost of Rs.3000/- was imposed on the petitioner, however,
the cost has not been paid. No steps have also been taken for service of
respondent No.2 despite four or five opportunities/adjournments given
to the petitioner. The petition against respondent No.2 is, therefore,
dismissed for non-prosecution.
The petitioner has contended that there was an arbitration
agreement between the petitioner and respondent No.1. The arbitration
agreement between the petitioner and respondent No.1 is as under:-
"All disputes/differences and questions, whatsoever
which shall arise between the parties hereto during the
continuance of this Agreement afterwards, touching this
Agreement of the constructions or applications thereof or
any clauses herein contained on the rights, duties and
liabilities of either party in connection therewith shall be
referred to a sole arbitration to be appointed by BMT and
PURCHASER. All such arbitration proceedings shall be held
in Delhi (India) and shall be in accordance with and subject
to the provision of the Indian Arbitration Act, 1940 or any
statutory modification or re-enactment thereof for the time
being in force."
The petitioner has contended that he had filed a suit for
injunction bearing No.524/1999 before the Civil Judge, Senior Division,
Lucknow seeking a direction to restrain the defendants from invoking
the bank guarantee given by the petitioner. An application under
Section 8 of the Arbitration & Conciliation Act, 1996 for appointment of
an arbitrator was filed on behalf of respondent No.1/applicant. The
Civil Judge by order dated 12th September, 2001 had directed the
parties to initiate arbitral proceedings as per the agreement between the
parties and had dismissed the suit. An appeal was filed by the
petitioner, however, the appeal was also dismissed by order dated 23rd
September, 2001 upholding the order of Civil Judge, Senior Division,
Lucknow directing the parties to invoke the arbitration agreement.
The petitioner has further contended that he had issued a notice
to the respondents to agree to the appointment of a sole arbitrator,
however, the letter/notice was returned unserved upon respondent No.1
and consequent thereto the petitioner is approaching this Court for
appointment of a sole arbitrator to adjudicate the dispute between the
parties.
Though a photocopy of the unserved notice of Mr.Yadav, Advocate
dated 25th October, 2002 has been produced, which is also unsigned.
Nothing has been produced to show that the notice was sent to the
respondent and the notice remained unserved as has been alleged by
the petitioner. No order has been filed of either the Civil Judge or the
Allahabad High Court dismissing the suit and the appeal of the
petitioner.
Despite various opportunities no steps were taken by the
petitioner to serve respondent No.2 resulting into dismissal of the
petition for non-prosecution against respondent No.1. There is nothing
on record to show that arbitration agreement was invoked by the
petitioner. In the circumstances the petition is without any merit and it
is dismissed.
February 16, 2009 ANIL KUMAR, J.
'k'
