Kavita Agarwal vs Avneet Soni
2015 Latest Caselaw 5417 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 29.07.2015
+       FAO(OS) 406/2015

KAVITA AGARWAL                                                 ... Appellant
                                         versus
AVNEET SONI                                                    ... Respondent
Advocates who appeared in this case:
For the Appellant            : Mr Sanjeev Mahajan
For the Respondent           : Nemo

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM No. 13248/2015

The exemption is allowed subject to all just exceptions.

FAO(OS) 406/2015 and CM No. 13247/2015

1. This appeal is directed against the order dated 27.04.2015 passed by a

learned Single Judge of this court in OMP No. 273/2015. It was a petition filed

by the appellant herein under Section 34 of the Arbitration and Conciliation Act,

1996 (hereinafter referred to as 'the said Act') challenging the award dated

31.12.2014 passed by the sole Arbitrator in disputes between the parties.

2. The main ground urged before us as also urged before the learned Single

Judge was that the arbitrator who passed the said award could not have been

appointed as a sole Arbitrator without the consent of the appellant. According to

the learned counsel for the appellant, the terms of the Memorandum of

Understanding dated 15.05.2010 had indicated a named Arbitrator who alone

could enter upon the reference. He further submitted that the subsequent

agreement dated 26.10.2012 did not supersede clause 17 of the earlier agreement.

He submitted that the second agreement only related to the additional amount of

Rs 30 lakhs and had no connection with the earlier amount of Rs 4.5 crores under

the earlier agreement. He also submitted that the fact that the second agreement

had been entered into did not mean that the earlier agreement stood abandoned or

superseded.

3. The learned Single Judge had examined this aspect of the matter and

found that the parties agreed expressly to the appointment of an Arbitrator by the

respondent in terms of the second agreement in the event any disputes arose

between them. The challenge to the authority of the arbitrator had also been

raised before the learned Arbitrator who had held against the appellant. The

learned Single Judge observed that the view taken by the learned Arbitrator that

clause 5 of the second agreement was by way of an amendment of clause 17 of

the earlier MOU was a plausible view and could not be said to be perverse or

irrational. It is in these circumstances that the learned Single Judge found no

cause to interfere with the impugned award on the ground that the Arbitrator had

no authority to decide the disputes between the parties. The learned Single Judge

also found that no prejudice had been caused to the appellant as an independent

Arbitrator had been appointed, who also happened to be a former judge of this

court and there was no allegation of bias or misconduct on the part of the

Arbitrator.

4. We find that the earlier agreement contained the following arbitration

clause:-

"Clause (17). In case of any dispute arising between the parties in respect of this agreement, the same shall be decided by a sole arbitrator Mr Gian Chand Gupta Resident of Ford Service Station, Rangpuri NH-8, Adj. to Shiv Murti, New Delhi. The venue of the arbitration shall be at Delhi."

The subsequent agreement between the parties contained the following

arbitration clause:-

"Clause (5). In case of any dispute arising between the parties in respect of this agreement, the same shall be decided by Arbitration by a sole arbitrator to be appointed by second party. The venue of the arbitration shall be at New Delhi."

The learned counsel for the appellant submitted, by referring to clause (5), which

has been extracted above, that the arbitration clause in the second agreement was

limited to the disputes which would arise between the parties in respect of the

second agreement and did not extend to the disputes which would have arisen

under the first agreement. We are unable to agree with this submission of the

learned counsel for the appellant. First of all, we agree with the learned Single

Judge that the Arbitrator had taken a plausible view and that no interference was

called for on that ground. Secondly, clause (1) of the second agreement itself

provides that all the other terms and conditions of the MOU dated 15.05.2010

"shall remain the same unless amended herein and shall form part and parcel of

this agreement". A fresh arbitration clause has been placed in the second

agreement. Therefore, the interpretation that clause (5) of the second agreement

superseded clause (17) of the earlier agreement cannot be said to be irrational or

perverse. It is on these lines that the learned Arbitrator and the learned Single

Judge have proceeded and we see no reason to take a contrary view.

The appeal is dismissed but with no order as to costs.

BADAR DURREZ AHMED, J

SANJEEV SACHDEVA, J

JULY 29, 2015 SU