Delhi High Court
Victory Electricals Ltd & Anr. vs Ge Capital Services on 20 May, 2015
Author: Badar Durrez Ahmed
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 20.05.2015
+ FAO (OS) 273/2015
VICTORY ELECTRICALS LTD & ANR. .... Appellant
versus
GE CAPITAL SERVICES ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr Sumesh Dhawan with Ms Vatsala
Kak Panda, Advocates.
For the Respondent : Ms Deepika V.Marwaha and Ms
Worthing Kasar, Advocates with Mr Atul
Bansal, AR of respondent in person.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
CM No.9265/2015 (exemption)
Exemption is allowed subject to all just exceptions.
FAO (OS) 273/2015
1. This appeal is directed against the order dated 21.04.2015 passed
by a learned Single Judge of this Court in OMP 55/2014. The said
petition was filed under Section 34 of the Arbitration & Conciliation Act,
1996 (hereinafter referred to as 'the said Act') and was in respect of the
award dated 03.10.2013 and the amended award dated 10.10.2013 passed
by the Sole Arbitrator in the disputes between the parties.
2. The only point urged by the learned counsel for appellant in the
present appeal is that the counter-claim which was submitted by the
appellant on 03.10.2013 ought not to have been rejected on the ground
that the Arbitrator had become functus officio. He further submitted that
a communication through e-mail had been sent on 28.09.2013 alongwith
the attached counter-claim in electronic form. The hard copy was
received by the Arbitrator on 03.10.2013 but, on that very date the
learned Arbitrator had already passed the award. The amended award of
10.10.2013 was only an amendment carried out for correcting certain
typographical errors.
3. The learned counsel for the appellant submitted that the counter-
claim could not have been filed earlier because the event which triggered
the counter-claim was the forfeiture of US $ 75000 by the appellant's
buyer and in respect of which the claim was sought to be made against
the respondent. That forfeiture took place only in March 2013 whereas
the disputes between the parties had already been referred to arbitration
on 13.01.2012. It is the case of the appellant that the subsequent disputes
could very well have been taken up by the learned arbitrator by admitting
the counter-claim for resolution.
4. We have examined the impugned order and also heard the learned
counsel for respondent. The fact that the counter-claim was not taken up
for resolution by the learned arbitrator can in no way impinge upon the
validity of the award which had been pronounced on 03.10.2013, as
amended by the subsequent award of 10.10.2013. In all other respects,
we do not find any reason to interfere with the impugned order or the
award.
5. The fact of the matter is that the purported claim based on the
forfeiture of March 2013 is a 'future dispute'. It is a future dispute in the
sense that at the time when the parties went in for arbitration, this dispute
did not exist. It arose subsequently. Therefore, it is open to the appellant
to seek arbitration of this dispute also in terms of the arbitration clause
between the parties. The refusal to take on record the counter-claim by
the learned Arbitrator would not come in the way of the appellant seeking
resolution of this dispute. Insofar as the learned Arbitrator is concerned,
we are of the view that the decision taken was correct that the counter-
claim was filed at a highly belated stage and, in fact, the hard copy was
received after the award had been made and in that sense the learned
arbitrator had become functus officio. But this would not, as pointed out
above, come in the way of the appellant to seek arbitration with regard to
the purported cause of action which was the subject matter of the counter-
claim in terms of the arbitration clause.
6. The appeal stands disposed of accordingly.
BADAR DURREZ AHMED, J
SANJEEV SACHDEVA, J
MAY 20, 2015
st
