M/S National Insurance Co.Ltd. ... vs M/S Chinar Roadlines
2015 Latest Caselaw 3092 Del

27
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 499/2013
      M/S NATIONAL INSURANCE CO.LTD. AND ANR. Plaintiffs
                     Through: Mr. Yogesh Malhtora,
                     Advocate

                           versus

      M/S CHINAR ROADLINES                     ..... Defendant
                    Through: Mr. Ravinder Zadoo, Advocate

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI

                           ORDER

% 17.04.2015

IA No.17657/2013(by the defendant u/S 8 of the Arbitration & Conciliation Act, 1996)

1. The present application has been filed by the defendant under

Section 8 of the Arbitration & Conciliation Act, 1996 praying inter alia

that the suit instituted by the plaintiff for recovery of `86,47,828/-, is

liable to be dismissed in view of the fact that there is an arbitration

clause governing the parties, as contained in the Transport Agreement

dated 17.4.2008, executed between the plaintiff No.2 and the

defendant.

2. Clause 1.17 of the Transport Agreement is reproduced

hereinbelow:

"All disputes, differences and questions whatsoever, which shall arise between the parties hereto during the

continuance of this agreement or afterwards touching this agreement or the rights/liabilities of either party in connection therewith, shall be referred to a sole arbitrator to be appointed either mutually or by Indian Council of Arbitration on reference. The decision of the said arbitrator shall be final and binding on both the parties. The cost of the arbitration shall be borne by party who loses the case."

3. It is stated in the application that as per clause 1.17 of the

Transport Agreement dated 17.4.2008, executed between the

defendant and the plaintiff No.2, all the disputes, differences and

questions arising between the parties, touching the Agreement or the

rights/liabilities of the parties in connection therewith, are liable to be

referred to arbitration.

4. A reply in opposition to this application has been filed by the

plaintiffs. However, counsel for the plaintiffs had stated on 9.4.2015

that although the arbitration clause contained in the Transport

Agreement governs the defendant and the plaintiff No.2, plaintiff No.1

is also agreeable to submitting its disputes to arbitration. On the said

date, as none was present on behalf of the defendant, the matter was

adjourned for today.

5. Today, counsel for the defendant states that he may be

permitted to withdraw the present application on the ground that the

arbitration clause contained in the Transport Agreement governs his

client and the plaintiff No.2 but it does not extend to the plaintiff No.1.

6. Such a plea, if at all, is available to the plaintiff No.1, who is not

a party to the Transport Agreement. However, counsel for the

plaintiffs has already stated that the plaintiff No.1 is also willing to

submit all its disputes for adjudication to the arbitral tribunal. In such

circumstances, the defendant cannot be permitted to renege from its

stand or be heard to state that the plaintiff No.1 cannot be made a

party to the arbitration proceedings, particularly when it is its own

stand, as taken in the present application, that all the disputes

between the parties are liable to be referred to arbitration. The

request of the counsel for the defendant for seeking withdrawal of the

present application is therefore declined.

7. At this stage, counsel for the defendant states that some talks of

settlement have been initiated between the plaintiff No.1 and his client

and a Marine Recovery Consultant has been appointed by the plaintiff

No.1 to settle their interse disputes.

8. Nothing precludes the parties from negotiating a settlement with

each other and if a comprehensive settlement is arrived at between

the plaintiffs and the defendant, then that would be the end of the

matter. However, this cannot be a ground for the defendant to resist

appointment of an arbitrator, particularly when such a request has

emanated from it and has been acceded to by the plaintiffs.

9. Accordingly, the present application is allowed. Justice

S.N.Aggarwal (Retd.) residing at Flat No.302, Block-4, Second Floor,

19, Rajpur Road, Delhi-110054(Mobile No.8860091011) is appointed

as a Sole Arbitrator to adjudicate the disputes between the parties,

including their claims and counter claims. The arbitration shall take

place under the aegis of the Delhi International Arbitration Centre

(DAC). The fees of the learned Arbitrator will be in terms of the Delhi

International Arbitration Centre Arbitration Proceedings (Arbitrators'

Fees) Rules.

10. The application is disposed of.

A copy of this order shall be communicated forthwith to the

learned Arbitrator as well as Additional Co-ordinator, DAC.

HIMA KOHLI, J APRIL 17, 2015 mk