Kailash Prajapati vs Citicorp Finance(I) Ltd
2012 Latest Caselaw 915 Del

~01.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      ARB.P. 44/2012
%                                       Judgment dated 09.02.2012
       KAILASH PRAJAPATI                          ..... Petitioner
                    Through :           Ms.Aishwarya Bhati, Adv.
                    versus
       CITICORP FINANCE(I) LTD       ..... Respondent

Through CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J (ORAL)

1. Present petitioner has been filed by petitioner under Section 11(6) of Arbitration and Conciliation Act, 1996, for appointment of an Arbitrator.

2. Prior to filing of the present petition no notice has been served upon the respondent by the petitioner.

3. Learned counsel for the petitioner submits that issuance of notice is not mandatory. Counsel further submits that even otherwise the respondent had filed a petition under Section 9 of Arbitration and Conciliation Act, 1996, in the year 2007, in which interim relief was granted. Subsequently, a contempt petition was also filed against the respondent as the order of the Court was willfully flouted. Pendency of the above proceedings would amount to sufficient notice to the respondent and because of the pendency of the above proceedings there is no necessity of issuing any notice to the respondent.

4. Learned counsel for the petitioner has also drawn the attention of the Court to the legal notice issued by respondent to the petitioner and the reply thereto filed by the petitioner herein wherein it was stated by the respondent that in case the amounts are not paid the respondent would take appropriate action against the petitioner.

5. In support of the above submission that no notice is required, learned counsel for the petitioner has relied upon Sundaram Finance Ltd. v. NEPC India Ltd. reported at (1999) 2 SCC 479, more particularly paras 18 and 19. Counsel has also relied upon in the case of Firm Ashok Traders and Another v. Gurumukh Das Saluja and Others, reported at (2004) 3 SCC 155, more particularly paras 17 to 19.

6. I have heard counsel or the petitioner and also perused the petition. In my view the petitioner has failed to satisfy the basic ingredients essential to the very maintainability of the present petition under Section 11(6) of Arbitration and Conciliation Act, 1996. The fact that the respondent had filed a petition under Section 9 of Arbitration and Conciliation Act, 1996, against the petitioner herein as also keeping in view that in a notice issued by respondent to the petitioner, the respondent had stated that in case the petitioner does not pay the amounts appropriate action would be initiated would not amount to issuance of notice for appointment of an Arbitrator in terms of Section 11(4) of Arbitration and Conciliation Act, 1996. Not only it is mandatory for the petitioner to issue a notice prior to the filing of the petitioner under Section 11(6) of Arbitration and Conciliation Act, the contents of the notice should be clear and unambiguous and further the petitioner must place on record reasonable proof of service [See 2005 Arb.LR 225 (Delhi) and 2005 (3) Arb.LR 39 (Delhi)].

7. A bare reading of the Section would show that there has to be strict adherence to the conditions prescribed in Section 11(5) of Arbitration and Conciliation Act as not only the communication must be issued for putting the other side on notice, the party must also wait for thirty days before invoking the jurisdiction of the Chief Justices designate.

8. Judgments, sought to be relied upon by counsel for the petitioner, are also not applicable to the facts of the present case. In the absence of any notice having been issued to the respondent for appointment of an Arbitrator, present petition is not maintainable and the same is accordingly dismissed.

I.A.NO.I.A.NO.1556/2012 (DELAY) & 1557/2012 (APP. OF ARBIT.)

9. Applications stand dismissed in view of the order passed above.

G.S.SISTANI, J FEBRUARY 09, 2012 msr