M/S Roshan Real Estates Pvt. Ltd. vs Indira Gandhi National Open ...
2014 Latest Caselaw 5270 Del

$~21
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      ARB.P. 528/2014
       M/S ROSHAN REAL ESTATES PVT LTD              ..... Petitioner
                       Through: Mr. Sandeep Sharma, Advocate
                       versus
       INDIRA GANDHI NATIONAL OPEN
       UNIVERSITY                                   ..... Respondent
                       Through
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SHAKDHER
                       ORDER

% 27.10.2014 IA No.20582/2014 (Exemption)

1. Allowed subject to just exceptions.

ARB.P. 528/2014

2. This is a petition filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (in short the Act).

3. Briefly, what is necessary to be noted for disposal of the petition is that, the respondent herein, based on the disputes raised by it and, upon invocation of the arbitration clause vide letter dated 09.09.2013, appointed an arbitrator in the matter. The said appointment was made on 09.10.2013. However, the arbitrator so appointed, one, Mr. K.K. Varma, resigned on 04.11.2013. 3.1 Admittedly, thereafter, on 05.12.2013, the respondent appointed another arbitrator, Mr. Rakesh Mishra. It is also not in dispute that the petitioner herein has filed statement of claims before the learned arbitrator on 28.04.2014.

ARB.P. 528/2014 page 1 of 4 3.2 The case of the petitioner is that on the first hearing held by the learned arbitrator on 07.07.2014, it was pointed out by the petitioner that claims nos.12 and 13 had not been referred to the learned arbitrator for adjudication.

3.3 The petitioner followed this oral submission made before the learned arbitrator on 07.07.2014 with a communication dated 12.07.2014. In this communication, the petitioner adverted to the fact that not only claim nos.12 and 13 had not been referred to him but that the value of claim No.6 required correction. According to the petitioner, the value of the claim ought to have been Rs.98,84,000/- as against the figure which was shown in the communication making reference, which is, Rs.98,084/-.

4. It is in this background that the petitioner, has filed this petition.

5. A perusal of letter dated 12.07.2014, would show that averments have been made to the effect that in so far as claim no.12 is concerned, submissions in that behalf have been made at pages 38 and 39 of the statement of claims and, in so far as, claim no.13 is concerned, submissions have been made at page no.39 of the statement of claims.

5.1 In so far as the value of claim no.6 is concerned, it is stated in the very same letter, i.e. letter dated 12.7.2014 that it should have been pegged at Rs.98,84,000/- and not Rs.98,084/-. 5.2 It is, therefore, the case of the petitioner that the submissions with regard to the aforementioned claims, are embedded in its statement of claims.

ARB.P. 528/2014 page 2 of 4 5.3 I had asked Mr. Sharma, as to how a petition for this purpose would lie under Section 11(6) of the Act. Mr. Sharma has not been able to demonstrate as to how this court could exercise power under Section 11(6) of the Act, after appointment of an arbitrator, for the aforementioned purpose.

5.4 Mr. Sharma, however, says that since reference has already been made, it would prejudice the case of the petitioner in seeking adjudication in respect of the aforementioned claims, if order to that effect is not passed by the court.

5.5 Mr. Sharma, however, does not dispute the fact that as per the terms of the agreement entered into between the parties, the petitioner was required to articulate the nature and value of the disputes before they were referred to arbitration by the respondent. 5.6 It is also not Mr. Sharma's case that any mistake has been made in that behalf, at least by the respondent. Mr. Sharma in effect says that his client has become wiser after filing the statement of claims.

6. In these circumstances, perhaps the only way out for Mr. Sharma's client would be, if at all, to take recourse to the provisions of Section 23(3) of the Act.

6.1 Therefore, while not entertaining the petition, it would be open to the petitioner to take recourse to the said remedy. The arbitrator would mull over the issue and decide such an application if filed, albeit in accordance with law.

6.2 At this stage, Mr. Sharma says that not only has his client become wiser but that it was the petitioner's case as set out in the ARB.P. 528/2014 page 3 of 4 communication dated 12.07.2014 that due to inadvertence, the aforementioned claims including the enhancement of value of claim No.6, could not be brought to fore at the stage when, the statement of claims was filed in the first instance.

6.3 For whatever it is worth, these are submissions which will, I am sure, be considered by the learned arbitrator, at the relevant point in time, on being moved in that regard.

7. With the aforesaid observations in place, the captioned petition is disposed of.

                                                 RAJIV SHAKDHER, J
OCTOBER 27, 2014
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ARB.P. 528/2014                                                  page 4 of 4