Sanjeev Khokha vs Ircon Internation Limited
2009 Latest Caselaw 148 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  OMP No. 133/2002 and Arb. P. No. 31/2003

%                        Date of Decision: January 19, 2009


# Sanjeev Khokha                                          ..... Petitioner

!                         Through: Mr. Rajeev Mehra, Advocate

                                     Versus

$ Ircon Internation Ltd.
                                                      .....Respondents

^                         Through: Mr. K.R. Gupta and Ms. Kiran

                                   None for respondent No. 2.


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

S.N.AGGARWAL, J (ORAL) Both these petitions are taken up for disposal by this common

order with the consent of counsel for both the parties.

2 The petition being OMP No. 133/2002 is a petition filed by the

petitioner (hereinafter to be referred as the 'Contractor') under

Section 9 of the Arbitration and Conciliation Act, 1996. The case

being Arb. P. No. 31/2003 is an application filed by the Contractor

for appointment of an Arbitrator under Section 11(6) of the

Arbitration and Conciliation Act for adjudication of disputes that

have arisen between the parties under the contract in question

dated 12.04.1997.

3 Respondent No. 1 vide letter of indent dated 12.04.1997 had

awarded a contract to the Contractor for constructing 'guest house

and office block' at the National Agricultural Science Centre

Complex, Pusa Complex, New Delhi. At the time contract was

awarded, the firm to whom the contract in question was awarded

was a partnership firm duly registered under the Partnership Act,

1932. The petitioner/ contractor Mr. Sanjeev Khokha along with Mr.

Suresh Khokha and Mr. R.K. Kapoor was the partner of the

contractor firm. While the contract work was in progress, two of the

partners of the contractor firm namely Mr. Suresh Khokha and Mr.

R.K. Kapoor resigned from the firm and in terms of agreement

between them, the business under the same name of contractor

firm was succeeded by Mr. Sanjeev Khokha who has filed these

petitions in his capacity as sole proprietor of the contractor firm. Mr.

Suresh Khokha and Mr. R.K. Kapoor, erstwhile partners of the

contractor firm, were present before the Court when the matter was

taken for hearing by me on 07.01.2009, 14.01.2009 & 15.01.2009.

Both erstwhile partners of the contractor firm who attended the

hearing along with Mr. Sanjeev Khokha confirmed to the Court

about their having resigned from the contractor firm and also about

Mr. Sanjeev Khokha succeeding to the business of the contractor

firm after their resignation from the firm. There was dispute

between the parties regarding the date on which Mr. Sanjeev

Khokha succeeded to the business of the contractor firm. The

liability of the partners of a registered partnership firm is joint and

several in view of provisions contained in Section 25 read with

Section 32 of the Partnership Act, 1932. Since there was a dispute

about the date of dissolution of the contractor firm and also as

there was a dispute about the date on which Mr. Sanjeev Khokha

succeeded to the business of contractor firm, both the erstwhile

partners Mr. Suresh Khokha and Mr. R.K. Kapoor who attended the

hearing gave a statement to the Court that in case any award is

passed by the Arbitrator against the contractor firm, respondent No.

1 may enforce the said award not only against Mr. Sanjeev Khokha

who has filed these petitions but also against them (namely Mr.

Suresh Khokha and Mr R.K. Kapoor) as well being the erstwhile

partners of the contractor firm. On this statement being made by

erstwhile partners of the contractor firm, counsel for both the

parties have agreed for passing of a consent order in both these

petitions.

4 In terms of consent given by the counsel for the parties on

instructions from their clients, the petitioner/ contractor has agreed

to deposit the FDRs to the tune of Rs.2,41,35,092/- in the name

Registrar General of this Court so as to secure the payment of

amount of the bank guarantees furnished by the contractor firm to

respondent No. 1 in the event of an award being passed by the

Arbitrator in favour of respondent No. 1. It is submitted by Mr.

Mehra, learned counsel appearing on behalf of the petitioner/

contractor that his client shall furnish a fresh FDR in the sum of

Rs.64 lacs in favour of Registrar General of this Court within four

weeks from today and on instructions from his client, he further

submits that the FDRs for the balance amount out of total amount

of Rs.2,45,35,092/- are lying with respondent No. 2 i.e Punjab

National Bank, Sansad Marg Branch, New Delhi and a request is

made that this Court may direct the concerned Branch Manager to

endorse these FDRs for the balance amount (Rs.2,45,35,092 minus

Rs.64,00,000/- = Rs.1,81,35,092) in favour of Registrar General of

this Court forthwith. This suggestion given by Mr. Mehra is

acceptable to Mr. K.R. Gupta, learned counsel appearing on behalf

of respondent No. 1. Accordingly, the petitioner/ contractor is

directed to furnish a fresh FDR of Rs.64 lacs in the name of

Registrar General of this Court within four weeks from today and

the Branch Manager, Punjab National Bank, Sansad Marg Branch,

New Delhi is directed to endorse the FDRs for the balance amount

((Rs.2,45,35,092 minus Rs.64,00,000/- = Rs.1,81,35,092)) lying

with him in the name of the contractor firm. On these FDRs being

endorsed by Punjab National Bank in favour of Registrar General of

this Court, the lien of respondent No. 1 with regard to bank

guarantees to the tune of Rs.2,45,35,092/- furnished to it by the

contractor firm shall stands discharged automatically. The amount

in the form of FDR to be deposited with the Registrar General of this

Court in the present case shall be dealt with in terms of the award

that may be given by the learned arbitrator.

5 Clause 67 of the contract between the parties contains

mechanism for settlement of dispute between the parties under the

contract in question. It is admitted by both the parties that the

disputes in fact have arisen between them under the contract in

question and they have agreed for getting these disputes decided

through the process of arbitration. Since the contractor firm had not

exhausted the mechanism for settlement of disputes provided in

Clause 67 of the contract, counsel for both the parties have agreed

that Mr. A.K. Sarin, Engineer Member (retd.), DDA, R/o 14/1, Tilak

Marg, New Delhi-110001 (Mobile No. 9810032292) be appointed as

the sole arbitrator for deciding the disputes between the parties

under the contract in question. The name of Mr. A.K. Sarin has been

selected by the counsel for the petitioner Mr. Sanjeev Khokha out of

list of 29 names of arbitrators furnished by respondent No. 1.

Needless to say that both the parties to the contract will be entitled

to make their claims and counter claims against each other and

they have to be decided by the sole arbitrator Mr. A.K. Sarin. The

arbitrator shall decide the disputes between the parties under the

contract in question in accordance with law after giving opportunity

of hearing to both of them. Learned arbitrator shall fix his own fee

as per rules and any fee to be fixed by the learned arbitrator has to

be shared equally by both the parties.

A copy of this order be sent to the learned arbitrator for

information and necessary compliance. The parties are directed to

appear before the learned arbitrator for necessary directions at

5:00 PM on 25.02.2009.

In view of the above, both these petitions stand disposed of

leaving the parties to bear their own costs.

Order dasti to both the parties through their counsel under the

signatures of the Court Master.

January 19, 2009                           S.N.AGGARWAL
a                                             [JUDGE]





 *            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Arb. P. No. 31/2003

%                        Date of Decision: January 19, 2009


# Sanjeev Khokha                                        ..... Petitioner

!                         Through: Mr. Rajeev Mehra, Advocate

                                     Versus

$ Ircon Internation Ltd.
                                                      .....Respondents
^                         Through: Mr. K.R. Gupta and Ms. Kiran

                                   None for respondent No. 2.


CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1. Whether reporters of Local paper may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether the judgment should be reported in the Digest?

S.N.AGGARWAL, J (ORAL) For orders, see file of OMP No. 133/2002.

January 19, 2009                              S.N.AGGARWAL
a                                                [JUDGE]