Delhi High Court
R K Films & Media Academy vs Shree Omh Creations(Soc) & Ors. on 11 October, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11.10.2018
+ ARB.P. 566/2017
R K FILMS & MEDIA ACADEMY ..... Petitioner
Through Mr. Sameer Bhatnagar, Adv.
versus
SHREE OMH CREATIONS(SOC) & ORS. ..... Respondents
Through Mr. Rishi Manchanda and Mr. Arun
Kumar, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J. (ORAL)
I.A. 14106/2018
1. This is an application for condonation of delay in filing the rejoinder.
2. The period of delay is fifteen (15) days.
3. For the reasons given in the application, the delay is condoned.
4. The application is, accordingly, disposed of.
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5. The record shows that the parties have entered into a Memorandum of
Understanding dated 3.6.2009 (MOU).
6. By virtue of this MOU, according to the petitioner, the respondents
were obliged to produce a television serial to be aired on Doordarshan.
7. It is the case of the petitioner that the respondents failed to discharge
their obligations which propelled the petitioner to seek refund of the amount
handed over to the respondents for production of the television serial.
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8. Evidently, on 5.1.2011, the respondents issued a cheque for a sum of
Rs.2 lakh which was dishonoured on presentation.
9. Thereafter, the respondents refunded a sum of Rs.1 lakh to the
petitioner.
10. I may only note that it is the respondents case that Rs.1 lakh was paid
towards full and final settlement of all liabilities under the MOU.
11. In and about 10.6.2011, the petitioner filed a complaint in the
concerned Court under Section 138 of the Negotiable Instruments Act, 1881,
in respect of the cheque which was dishonoured.
11.1 This complaint was, however, dismissed by the concerned Court.
12. Apart from the above, the petitioner also filed a Civil Suit for
recovery in which, admittedly, the respondents filed an application under
Section 8 of the Arbitration and Conciliation Act, 1996 (in short "1996
Act").
12.1 The suit was filed by the petitioner in and about 12.1.2012.
12.2 The application filed by the respondents under Section 8 of the 1996
Act was allowed on 1.10.2012.
13. The learned Additional District Judge via the same order referred the
matter for arbitration to, one, Mr. Biju Basumacary, Advocate.
14. The petitioner claims that the learned Arbitrator was informed about
his appointment via communication dated 5.12.2012.
15. It is also the assertion of the petitioner that the learned Arbitrator
convened hearings in the matter on 7.5.2013, 2.7.2013, 13.8.2013 and
20.10.2013.
16. Furthermore, the petitioner avers that the learned Arbitrator fixed his
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fees in the matter at the hearing held on 13.8.2013.
17. According to the petitioner, the respondents failed to deposit their part
of the fees which was fixed at Rs.10,000/- by the learned Arbitrator.
18. It appears that the respondents had challenged the jurisdiction of the
learned Arbitrator by way of an application which was dismissed by the
learned Arbitrator vide order dated 20.10.2013.
18.1 Via the same order, the respondents were given opportunity to file
their defence to the statement of claim preferred by the petitioner.
19. It is the case of the petitioner that since then the learned Arbitrator has
abandoned the proceedings.
19.1 The petitioner avers that after 20.10.2013 no proceedings have been
held by the learned Arbitrator.
20. Given these circumstances, the petitioner, evidently, moved the Court
of the ADJ at Tis Hazari under Section 14/15 of the 1996 Act for appointing
a substitute Arbitrator.
21. This application, however, was dismissed by the learned ADJ vide
order dated 30.8.2016.
22. Given this circumstance, on 12.11.2016, the petitioner wrote to the
respondents to appoint an Arbitrator with mutual consent as per the terms of
the MOU.
22.1 In response thereto, the respondents vide reply dated 2.12.2016
informed the petitioner that an Arbitrator need not be appointed as there was
no dispute obtaining between the parties which required adjudication.
23. It is in this background that the petitioner has moved this Court.
24. Mr. Manchanda, who, appears for the respondents, in line with the
stand taken by the respondents in their reply dated 2.12.2016, contends that
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with the payment of Rs. 1 lakh to the petitioner, the disputes between the
parties have been settled.
25. Mr. Manchanda also says that the claims made by the petitioner are
time barred.
26. It is, however, not disputed by Mr. Manchanda that an Arbitration
Agreement exists between the parties.
27. On the other hand, Mr. Bhatnagar, who, appears for the petitioner,
says that the issues raised by Mr. Manchanda can be adjudicated upon by the
learned Arbitrator, if so appointed by the Court.
28. Having heard the learned counsel for the parties and given the
circumstances obtaining in the matter which have been adverted to
hereinabove, I am inclined to agree with the petitioner insofar as the
appointment of an Arbitrator is concerned.
29. This is especially so as there is no dispute with regard to the fact that
there is an Arbitration Agreement in existence and that in the first instance,
an Arbitrator was appointed on account of intercession of the respondents in
the Civil Suit filed by the petitioner.
30. The fact that Mr. Manchanda does not dispute that the learned
Arbitrator has not held any proceedings after 20.10.2013 only lends support
to the submission advanced by the counsel for the petitioner that a substitute
Arbitrator needs to be appointed in the matter.
31. Accordingly, as prayed, Mr. Arvind Nigam, Senior Advocate, (Cell
no: 9313366345) is appointed as an Arbitrator in the matter.
32. He will be paid a lump sum fee of Rs.50,000/- which will be equally
shared by the parties herein.
33. In addition thereto, incidental expenses will also be reimbursed to the
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learned Arbitrator.
34. The parties and their counsel will appear before the learned Arbitrator
on 13.11.2018 at 3:00 p.m.
35. The petition is disposed of in the aforesaid terms.
RAJIV SHAKDHER, J
OCTOBER 11, 2018
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