Dishant Malhotra vs Sandeep Kumar
2012 Latest Caselaw 1684 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 12.03.2012

+            CM(M) 1277/2011 & CM No. 19890/2011


DISHANT MALHOTRA                                     ..... Petitioner
                Through:                  Mr. Gaurav Gandhi, Adv.

                      versus


SANDEEP KUMAR                                         ..... Respondent
                               Through    Mr. R.K. Beri, Adv.



      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Order impugned is dated 27.07.2011; the application filed by the

defendant under Section 8 of the Arbitration and Conciliation Act, 1996

had been dismissed. The petitioner is aggrieved by this finding.

2 Record shows that the present suit is a suit filed by the plaintiff

seeking recovery of `40,000/; contention was that the balance amount

which is due from the defendant on the bill dated 03.06.2010 has not

been paid. Admittedly there was an agreement entered into between the

parties which is dated 03.06.2010. There are 16 clauses in the said

agreement and the arbitration clause is contained in para 15 which reads

herein as under:-

"That any dispute arising out of the aforesaid agreement shall be settled through the arbitration as per the provisions of Indian Arbitration Reconciliation Act, 1996, the both party have the absolute power to appoint the sole arbitrator whose award shall be binding on both the parties."

3 From this arbitration clause, it is clear that any dispute arising out

of the aforesaid agreement shall be settled through arbitration; both

party shall have the absolute power to appoint the sole arbitrator whose

Award shall be binding on both them.

4 It is also not in dispute that this claim which has been filed by the

plaintiff against the defendant is a claim arising out of a bill in terms of

the aforenoted agreement. As such the contention of the defendant that

the parties were governed by the arbitration clause carries force and the

impugned order dismissing the application under Section 8 of the

Arbitration and Conciliation Act, 1996 on the premise that the original

arbitration agreement has not been filed (when admittedly arbitration

agreement is the foundation of the case and is an admitted document)

was clearly an illegality; the parties were governed by this arbitration

clause contained in the agreement dated 03.06.2010. All the ingredients

necessary for the applicability of the provisions of Section 8 of the said

Act stood attracted. In terms of the arbitration clause, the dispute which

has been arisen is accordingly referred to the arbitration in terms of the

arbitration agreement.

5     Petition disposed of in the above terms.




                                             INDERMEET KAUR, J
MARCH 12, 2012
A