Delhi High Court
Ammtys Interior (India) Projects ... vs Itma Hotels India Pvt. Ltd. on 26 August, 2016
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 75/2016
AMMTYS INTERIOR (INDIA) PROJECTS
PVT.LTD. ..... Petitioner
Through: Mr Vivekanand, Advocate.
Versus
ITMA HOTELS INDIA PVT. LTD. ..... Respondent
Through: Mr Abhik Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 26.08.2016
VIBHU BAKHRU, J
1. The petitioner has filed the present application under Section 11 of the
Arbitration and Conciliation Act, 1996 (hereinafter the „Act‟), inter alia,
praying that a Sole Arbitrator be appointed.
2. It is stated that the tender for execution of the work described as
"Interior Works of Banquet Hall, Pre-function, banquet entrance lobby and
male female washroom, on the first floor at The Park Kochi" was invited by
respondent no.1 through its consultant, M/s Apeejay Surender Group,
having its office at B-II/42, Mohan Co-operative Industrial Estate, Mathura
Road, New Delhi. It is stated that the petitioner responded to the invitation
to tender and, thereafter negations were held between the parties at Delhi at
the office of M/s Apeejay Surender Group ( hereafter „the Consultant‟) and
it was decided to award the contract for the works in question to the
petitioner.
3. It is stated that thereafter Work Order No. 137 dated 27.04.2012 was
issued to the petitioner. Subsequently the petitioner was also awarded the
work of " Interior Works of the Restaurants at 27th and 28th Floor including
all lobbies, all male female washrooms, on both the floors at The Park Kochi"
and Work Order No. 189 dated 11.08.2012 was issued to the petitioner.
4. The petitioner states that certain disputes have arisen between the
parties in relation to the said contract.
5. In view of the disputes, the petitioner invoked the arbitration clause in
the aforesaid Work Orders and by a letter dated 07.04.2015 proposed names
of three persons and requested the respondent to agree to any one of them
for being appointed as a Sole Arbitrator.
6. On receipt of the aforesaid letter, the respondent sent a
communication dated 06.05.2015, inter alia, stating that the respondent had
referred the letter of invocation to its legal counsel.
7. Thereafter, on 18.05.2015 the respondent‟s counsel issued a notice,
inter alia, claiming that an excess payment had been made by the respondent
and, further rejecting the petitioner‟s request for appointment of an
Arbitrator.
8. The agreements (the Work Orders) between the parties are not
disputed. It is also not contested that the disputes between the parties are to
be resolved through arbitration. The aforementioned Work Orders contain a
similarly worded arbitration clause, which reads as under:-
"21. ARBITRATION
In the case of "arbitration clause" in terms of the Contract, in an
event both the parties are not able to arrive at a mutually
acceptable arbitrator - i.e. in case of disagreement as to the
appointment of a single arbitrator then the Arbitration will be of
two arbitrators (of considerable experience), one to be
appointed by each party which arbitrators shall before taking
upon themselves the burden of reference appoint an umpire.
The Arbitrators or the Umpire shall have Power to open up,
review and revise any certificate, opinion, decision, requisition
or notice save in regard to the excepted matters in dispute which
shall be submitted to him or them and of which notice shall
have been given as aforesaid. The Award of the Arbitrators or
the Umpire shall be final and binding on the Parties. This shall
be deemed to be a submission to Arbitration within the meaning
of the Indian Arbitration & Conciliation Act, 1996.
Terms and conditions mentioned above are applicable in
totality, thereby terms and conditions mentioned in your
quotation stand NULL & VOID."
9. The only objection taken by the respondent is that this Court does not
have jurisdiction to entertain the present petition.
10. Mr Abhik Kumar, the learned counsel appearing for the respondent
contended that this court does not have the jurisdiction in terms of Section
2(1)(e) of the Act as no part of the cause of action has arisen within the
jurisdiction of this court. He earnestly contended that the principal office of
the respondent is at Kochi; the works were to be executed at Kochi; the
venue of arbitration is at Kochi; and the negotiations were also held at
Kochi.
11. Mr. Vivekanand, the learned counsel for petitioner, disputed the
above contentions. In the first instance, he submitted that all negotiations in
relation to the contract were held by the respondent in Delhi through the
Consultant, which has its office at B-II/42, Mohan Co-operative Industrial
Estate, Mathura Road, New Delhi. He further submitted that the work
orders were also communicated to the petitioner in Delhi.
12. I have heard the learned counsel for the parties.
13. It is apparent from the Arbitration clause that there is no agreement
between the parties as to the venue or seat of arbitration and Mr Kumar‟s
contention that the parties had agreed that the venue of the arbitration would
be in Kochi (or outside Delhi) is ex facie erroneous.
14. It is also not disputed that the e-mails dated 13.02.2012 issued by the
Manager Projects of the Consultant were issued from Delhi. The copies of
the said e-mails have been annexed with the present petition and the
petitioner also filed a requisite affidavit in support of the aforesaid e-mails.
15. Although Mr Kumar submitted that an additional copy of the Work
Order(s) was handed over to the petitioner in Kochi, there is no averment to
the said effect in the reply filed by the respondent. The Work Orders on the
letter head of the respondent indicate its office is at Kochi, however the
same has been signed by one Mr D.Bali who is stated to be Senior Vice
President of the Consultant, M/s Apeejay Surender Group, and has his office
at Delhi. The representative of the petitioner has not signed the Work Orders
as the same were received through e-mail. Thus, it is apparent that Work
Orders were sent from and received in Delhi.
16. The petitioner has also affirmed that negotiations for the contract were
held at the office of the Consultant at B-II/42, Mohan Co-operative
Industrial Estate, Mathura Road, New Delhi.
17. A perusal of the Work Orders also indicates that all bills for the works
are required to be forwarded to B-II/42, Mohan Co-operative Industrial
Estate, Mathura Road, New Delhi.
18. In A.B.C. Laminart Pvt. Ltd. & Anr v. A.P. Agencies, Salem: (1989)
2 SCR 1, the Supreme Court explained as under:-
"A cause of action means every fact, which, if traversed, it would
be necessary for the plaintiff to prove in order to support his right
to a judgment of the Court. In other words, it is a bundle of facts
which taken with the law applicable to them gives the plaintiff a
fight to relief against the defendant."
19. In view of the aforesaid facts, the contention that no part of cause of
action has arisen within the territorial jurisdiction of this Court cannot be
readily accepted.
20. The Supreme Court in Alchemist Limited and Anr. v. State Bank of
Sikkim and Ors.: (2007) 11 SCC 335 has held:
"....that even if a small fraction of the cause of action arises
within the jurisdiction of the court, the court would have
territorial jurisdiction to entertain the suit/petition."
21. In view of the above, the respondent‟s objection qua jurisdiction of
this court is rejected. Accordingly, the present application is allowed. Mr
Anil Airi, Senior Advocate (Mobile No.9811087578) is appointed as a Sole
Arbitrator for adjudication of the disputes between the parties. The fees of
the Arbitrator shall be in terms of the Schedule IV to the Act. The parties
shall approach the Arbitrator for fixing the preliminary hearing.
Order Dasti.
VIBHU BAKHRU, J
AUGUST 26, 2016
MK
