Indiabulls Financial Services ... vs Delhi Art Gallery Pvt. Ltd. & Anr.
2009 Latest Caselaw 3614 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                OMP No.252/2009

%                                 Date of decision:07.09.2009

INDIABULLS FINANCIAL SERVICES LTD.....Petitioner
                       Through:   Mr. Sunil Prakash Sharma, Advocate
                                  for the Petitioner.


                               Versus

DELHI ART GALLERY PVT. LTD. & ANR. ..Respondents
                       Through: Mr. Sandeep Agarwal with Mr. K.A.
                                Singh, Advocates for the Respondent
                                No.1.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                No

2.    To be referred to the reporter or not?         No

3.    Whether the judgment should be reported        No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petition has been filed for interim measures, inter-alia of

restraining the respondents from disposing of, selling, alienating the

immovable property, for appointment of the nominee of the

petitioner as receiver with respect thereto and for sale of the

property and for direction to the respondents to furnish monetary

security for the amounts alleged to be due. The petitioner claims to

have advanced monies to the respondent No.1 company and for

which the respondent No.2 is alleged to have stood as guarantor.

2. No ex-parte order was granted in favour of the petitioner and

notice of the petition was issued. On 10th July, 2009, the counsel for

the respondent No.1 company informed that the respondent No.2

has died and that the arbitration proceedings had been pending for

long and in spite of several opportunities the petitioner had till then

not filed the statement of claim.

3. The petitioner has not filed any application for substitution of

the legal representatives of respondent No.2. The counsel for the

petitioner states that the petitioner is not aware of the legal

representatives and the respondent No.1 should be directed to

disclose the particulars of the legal representatives.

4. The counsel for the respondent No.1 states that reply could not

be filed and on being given an opportunity the same shall be filed

during the course of the day. He further states that as far as

respondent No.1 is concerned, there is no arbitration agreement and

thus the petition against the respondent No.1 is not maintainable.

5. The counsel for the petitioner on enquiry states that an

application for loan was signed by the respondent No.1; though the

same contains certain terms & conditions but does not provide for

arbitration; the respondent No.2 had signed a Letter of Guarantee as

part of the same transaction and the said Letter of Guarantee

provides for arbitration. It is argued that since the arbitration

agreement contained in the Letter of Guarantee is part of the same

transaction, the respondent No.1 company is also bound by the said

arbitration agreement.

6. The arbitration agreement is contained in the Letter of

Guarantee, in Clause 24 thereof. The Letter of Guarantee is not

executed by the respondent No.1 company. The same is purported to

be executed by one Shri Ashish Anand and Ms. Rama Anand

(Respondent No.2). Mr. Ashish Anand has not been impleaded as a

party to the present petition, though also a signatory to the Letter of

Guarantee. The counsel for the petitioner states that since the

restrain order was sought against the property of Ms. Rama Anand

only through Mr. Ashish Anand, though a guarantor was not

impleaded as a party. The signing of Letter of Guarantee by Mr.

Ashish Anand along with Ms. Rama Anand falsifies the plea of the

petitioner of being not aware of the heirs of Ms. Rama Anand. In any

case, the Letter of Guarantee containing the arbitration clause is

signed by the said Mr. Ashish Anand & Ms. Rama Anand in their

personal individual capacity and not in their capacity as Director of

the respondent No.1 company and the agreement, if any, of

arbitration contained in the Letter of Guarantee cannot be said to be

an agreement of arbitration qua the respondent No.1 company also.

Even otherwise the Letter of Guarantee is concerned, with the

guarantee furnished by the aforesaid persons only and not with the

disputes, if any, between the petitioner and the respondent No.1.

Thus the petition against the respondent No.1 with whom the

petitioner has not shown any arbitration agreement is not found to

be maintainable.

7. The petitioner having not taken any steps for substitution of

the legal representatives of the respondent No.2, no ground is found

to grant any further opportunity to the petitioner in this regard

considering the nature of the present proceedings. The arbitration

proceedings are stated to be already underway and the counsel for

the petitioner states that the claim petition has been filed before the

arbitrator. The petitioner, if so desires shall be entitled to seek

disclosure of legal representatives of Ms. Rama Anand in the said

proceedings.

In the circumstances, the petition is dismissed.

No order to costs.

RAJIV SAHAI ENDLAW (JUDGE)

September 7th, 2009 pp