Delhi High Court
Picasso Digital Media Pvt. Ltd. vs Pick-A-Cent Education ... on 30 August, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 30, 2016
+ FAO 229/2015
PICASSO DIGITAL MEDIA PVT LTD. ..... Appellant
Through: Mr. Gaurav Singh, Advocate
Versus
PICK-A-CENT EDUCATION AND CONSULTANCY
SERVICES PVT LTD & ORS. ..... Respondents
Through: Mr. Chirag Jamwal, Advocate
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
ORAL
C.M.No. 12769/2015 (u/S 5 & 14 of The Limitation Act, 1963)
Delay is of 35 days in filing the accompanying appeal. The reason
putforth for the delay occassioned is of appellant bona fidely purusing the
remedies before a wrong forum. Sufficient cause is shown for the delay
occasioned.
The application is allowed and delay of 35 days in filing the
accompanying appeal is condoned.
Application is disposed of.
FAO 229/2015
1. Impugned order of 10th March, 2015, declines appellant's
application under Section 9 of The Arbitration and Conciliation Act, 1996
by holding that recourse to Section 11(6) of the aforesaid Act has been
made by the respondent prior in time and so, in view of Section 42 of The
Arbitration and Conciliation Act, 1996, the courts in Karnataka would
have the jurisdiction.
2. At the hearing, learned counsel for appellant has drawn attention of
this Court to a recent decision of Supreme Court in State of West Bengal
& ors. Vs. Associated Contractors (2015) 1 SCC 32 to submit that the
function under Section 11(6) of The Arbitration and Conciliation Act,
1996 is an administrative one and so, application under Section 9 of the
aforesaid Act, cannot be dismissed on the ground of lack of territorial
jurisdiction.
3. Learned counsel for respondents supports the impugned order and
submits that question as to whether the Court before whom an earlier
application had been filed is the court of competent territorial jurisdiction
has to be considered by that court itself and so, appellant's application
under Section 9 of The Arbitration and Conciliation Act, 1996 has been
rightly dismissed by the impugned order.
4. To controvert the aforesaid stand, learned counsel for appellant
submits that appellant has withdrawn petition under Section 11(6) of The
Arbitration and Conciliation Act, 1996 filed before the High Court of
Karnataka.
5. At this stage, learned counsel for respondent has placed on record
copy of 'Memo of Withdrawal' alongwith the order passed thereon by the
High Court of Karnataka to show that it was not a simpliciter withdrawal
but was a withdrawal with liberty to file appropriate proceedings before
the competent judicial authority, as the agreement between the parties
stood vitiated due to misrepresentation and suppression of actual facts. It
is submitted that respondent has already resorted to the criminal
proceedings qua the misrepresentation and suppression of facts by the
appellants herein.
6. Upon hearing and on perusal of impugned order as well as
doucments on record, I find that Section 8 of the Agreement between the
parties stood supplemented by the Memorandum of Understanding of 1st
July, 2009, which was renewed on 5th October. 2013. It is so noted in
paragraph No.8 of the impugned order. As per Clause 23 of
Memorandum of Understanding of 1st July, 2009, the recourse to
arbitration proceedings in case of dispute, has to be in the Delhi Courts. It
is no longer res integra that the function under Section 11 of The
Arbitration and Conciliation Act, 1996, is an administrative one. In the
considered opinion of this Court, the trial court has gravely erred in
ignoring the legal position, as reiterated by the Apex Court in State of
West Bengal (supra).
7. Consequently, the impugned order is set aside and trial court is
directed to decide appellant's application under Section 9 of The
Arbitration and Conciliation Act, 1996 on merits. It is made clear that if
parties volunteer to explore possibility of mediation before the trial court
in the first instance, then trial court shall permit the parties to have
recourse to mediation. Parties are directed to appear before the trial court
on 19th September, 2016.
8. With aforesaid directions, this appeal is disposed of.
(SUNIL GAUR)
JUDGE
AUGUST 30, 2016
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