Delhi High Court
Unsco Associations Sahkari Awas ... vs M/S Connoisseur Infratech Pvt Ltd ... on 9 December, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P. 526/2014
% Judgement pronounced on: 09.12.2014
UNSCO ASSOCIATIONS SAHKARI AWAS SAMITI LIMITED
..... Petitioner
Through: Mr Subhiksh Vasudev and Mr Ishaan
Madan, Advs.
versus
M/S CONNOISSEUR INFRATECH PVT LTD & ORS. Respondents
Through: Mr J.C. Gupta and Mr Vinay Gupta and
Mr R.Ravi, Advs for respondents 1 and 6
Mr Amit Kumar, Adv for R-2
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (ORAL)
1. Respondents No.3, 4 and 5 have been served. However, despite
service, there is no appearance on their behalf. They are proceeded ex parte.
2. The present petition has been filed for appointment of an Arbitrator
under Section 11(6) of Arbitration and Conciliation Act, 1996. It is
submitted that there was an agreement between the petitioner and the
respondent. Some dispute had arisen and, thereafter, the petitioner had
invoked the arbitration clause 22 of MoU dated 12.05.2011 for construction
on a plot. The invocation notice dated 26.03.2014 was served upon the
respondent by way of speed post. It is submitted that as per clause 22 of the
MoU, each party was required to appoint their own Arbitrator and then the
two Arbitrators, so appointed, was to appoint the presiding Arbitrator. It is
submitted that the petitioner has already appointed its Arbitrator Mr Pradeep
Mahajan, Advocate and informed the respondent vide the said invocation
notice, but the respondent has failed to appoint his Arbitrator within 30 days.
It is prayed that since the arbitration has to be conducted by an Arbitral
Tribunal consisting of three Arbitrators, the Court should appoint one
Arbitrator on behalf of respondent, then the two Arbitrators will choose the
presiding Arbitrator.
3. Learned counsel for the respondent has submitted that he had not
received any notice of invocation of the Arbitral Tribunal and appointment
of the Arbitrator by the petitioner. It is, however, submitted that without
prejudice to the rights and contentions of the respondent, the respondent has
no objection if an Arbitrator be appointed by this Court and give the liberty
to these Arbitrators to appoint the presiding Arbitrator. It is further
contended that the MoU was cancelled. This contention is refuted by the
petitioner.
4. Heard. File perused.
5. There is no dispute to the fact that there was an MoU dated
12.05.2011. Clause 22 of the said MoU clearly stipulates that in case of
dispute between the parties, the matter be referred to the Arbitral Tribunal.
Each party shall have a right to appoint one Arbitrator and those two
Arbitrators then appoint the presiding Arbitrator. There is a notice dated
26.03.2014 issued by the petitioner invoking this arbitration clause and
appointing his own Arbitrator, namely, Pradeep Mahajan. Learned counsel
for the respondent has denied the receipt of this notice. However, the
petitioner has placed on record the receipts showing the proof of the
dispatch. It is not in dispute that the address shown on the notice is a correct
address of the respondent and the receipts also show that notice was sent on
the said address. The presumption under the law, therefore, can be taken
that the parcel containing the notice must have reached at the correct
address. The petitioner has also placed on record the proof of delivery
which shows that the parcel containing the notice was delivered to the
respondent on 29.03.2014. I am, therefore, satisfied that the petitioner has
validly served the invocation notice, whereby not only he invoked the
arbitration clause, but pursuant to that, also appointed his Arbitrator. The
respondent has thereafter failed to appoint his own Arbitrator. I, therefore,
appoint Justice Manju Goel (Retired Judge, Delhi High Court). The learned
counsel for the respondent.
With these directions, the petition stands disposed of.
The Arbitrators shall be at liberty to fix his own fee.
DEEPA SHARMA
(JUDGE)
DECEMBER 09, 2014
BG
