Mistcold Sales & Services Pvt. ... vs Mayer Health Resort Ltd.
2009 Latest Caselaw 3827 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Date of Reserve: September 10, 2009
                                                   Date of Order: September 17, 2009

+Arb. P. 299/2008
%                                                                                  17.09.2009
     Mistcold Sales & Services Pvt. Ltd.                                           ...Petitioner
     Through: Mr. Asad Alvi & Mr. Faiz Hyder, Advocates

        Versus

        Mayer Health Resort Ltd.                                               ...Respondent
        Through: Mr.Sanjeev Ralli, Advocate



        JUSTICE SHIV NARAYAN DHINGRA

1.      Whether reporters of local papers may be allowed to see the judgment?

2.      To be referred to the reporter or not?

3.      Whether judgment should be reported in Digest?


        JUDGMENT

1. This petition under Section 11(6) of the Arbitration & Conciliation Act,

1996 has been preferred by the petitioner seeking appointment of an

arbitrator by this Court on the ground that the respondent has failed to

appoint an arbitrator despite a notice given by the petitioner. The defence

taken by respondent is that there was no arbitration agreement between the

parties.

2. Paragraph 7 of the petition reads as under:

"7. That it was further agreed between non applicant/ respondent and the petitioner that all terms and condition shall be as per petitioner's tender and the tender specification issued by KCB Associates. It is also mention worthy that as per the terms and condition of the tender

Arb. P. 299/2008 Mistcold Sales & Services Pvt. Ltd. v. Mayer Health Resort Ltd. Page 1 Of 4 there is an arbitration clause which has been agreed by non applicant/ respondent and the petitioner. The Arbitration clause has been incorporated herein for the sake of facility:

"Arbitration: In the event any dispute or difference between the parties arising from this contract shall be referred to Two Arbitrators one appointed by each arbitrator. These two Arbitrators shall appoint an Umpire before entering upon the reference."

3. The petitioner was asked to place on record the documents showing

that the alleged arbitration agreement was executed between the parties.

The petitioner failed to place on record any document showing that the

arbitration agreement was signed between the parties. The petitioner's

counsel took the plea that the arbitration agreement formed part of the

tender document. The petitioner has placed on record a copy of the tender

document, the general conditions of contract showing it to be as true copy of

the tender document. The relevant clause regarding dispute resolution in the

tender document reads as under:

"q) Arbitration:

All disputes arising out or in any way connected with this agreement shall be deemed to have arisen in Delhi and the Courts in the state of Delhi shall have jurisdiction to determine the same."

4. It is obvious that the clause relied upon and reproduced by the

petitioner in para 7 of the petition was not agreed between the parties and

the petitioner deliberately filed this petition alleging that there was an

Arb. P. 299/2008 Mistcold Sales & Services Pvt. Ltd. v. Mayer Health Resort Ltd. Page 2 Of 4 arbitration clause in the nature as given hereinabove.

5. The petitioner relied upon an alleged Annexure-5 stating that this was

a part of the general terms and conditions. Annexure-5, copy of which was

placed by the petitioner on record contained following arbitration clause:

"Arbitration: In the event of any dispute or difference between the parties arising however from this contract the same shall unless amicably settled, be referred to two arbitrators one to be appointed by each party. The two arbitrators shall before entering upon the Reference appoint an umpire. The decision of the two arbitrators or the umpire as the case may be shall be final and binding between the parties the arbitration proceeding shall take place in Delhi. This is an agreement for arbitration within the meaning of Indian Arbitration Act, 1940 including any statutory re-enactment or modification thereof."

6. The petitioner during arguments placed before the Court a copy of

tender document containing Annexure-5. However, this did not match with

the tender document filed by the petitioner earlier. The petitioner had filed

entire tender document on record which was a tender issued by the M/s

K.S.B. Associates Pvt. Ltd., a consultant of respondent, looking after this work.

The tender document contained an arbitration clause as given in para 3

above. There was no annexure-5 with this tender document. The general

conditions of the contract have been given in this tender document and these

general conditions of contract contained clause reproduced in para 3above. A

perusal of this clause makes it clear that this was not an arbitration clause

though the marginal note of the clause was "Arbitration" but the clause only

provided about the jurisdiction and it was only a jurisdiction clause. It is

Arb. P. 299/2008 Mistcold Sales & Services Pvt. Ltd. v. Mayer Health Resort Ltd. Page 3 Of 4 settled law that where clause itself is quite clear, its meaning cannot be

derived from the marginal heading or from title. It is only when there is an

ambiguity in the clause that help can be taken from the title in interpretation

of the clause. In the clause contained in general conditions, there is no

mention of the disputes to be resolved through the means of arbitration.

7. In view of my foregoing discussion, I come to conclusion that there was

no arbitration agreement between the parties. This petition under Section 11

of the Act is not maintainable and is hereby dismissed as such.

September 17, 2009                                        SHIV NARAYAN DHINGRA J.
rd

Arb. P. 299/2008 Mistcold Sales & Services Pvt. Ltd. v. Mayer Health Resort Ltd. Page 4 Of 4