Delhi High Court
Mr. Kunwer Sachdev vs Hero Fincorp Limited on 18 January, 2019
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.1.2019
+ O.M.P. (T) (COMM.) 9/2019
MR. KUNWER SACHDEV ..... Petitioner
Through Mr. Arvind Varma, Sr. Adv. with Mr.
Ajay Bhargava, Mr. Aseem
Chaturvedi and Ms. Wamika Trehan,
Advs.
versus
HERO FINCORP LIMITED ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
RAJIV SHAKDHER, J (ORAL)
I.A. 749/2019
1. Allowed, subject to the petitioner's filing legible copies of dim
documents before the next date of hearing.
O.M.P. (T) (COMM.) 9/2019 & I.A. 748/2019
2. This is a petition in which termination of the mandate of the
Arbitrator is sought.
3. In terms of the arbitration agreement obtaining between the parties,
the respondent has been given the mandate to appoint an Arbitrator.
4. The subject agreement in which the arbitration agreement has been
incorporated is dated 28.3.2015.
5. The petitioner, I am told, is the guarantor of an incorporated entity,
which is the principal borrower.
6. I am further informed by Mr. Varma, learned senior counsel, who,
appears for the petitioner, that proceedings have been taken out against the
principal borrower by a secured creditor, that is, the State Bank of India
under the Insolvency and Bankruptcy Code, 2016.
7. On being queried, Mr. Varma says that there is no allegation of bias
against the Arbitrator.
8. Mr. Varma's only apprehension is that the Arbitrator is moving with
undue haste in concluding the arbitration proceedings.
9. Mr. Varma has placed before me, the proceeding sheets dated
11.1.2019 and 16.1.2019 to demonstrate this aspect of the matter.
10. I have examined the proceeding sheets of 11.1.2019 and 16.1.2019.
10.1 To my mind, nothing of the kind which Mr. Varma alleges on behalf
of the petitioner, emerges from these proceedings.
11. Mr. Varma also submits that via this petition challenge is also laid to
the arbitration agreement insofar as it gives liberty to the respondent to
appoint an Arbitrator in the matter.
12. In my view, unless grounds are made out for terminating the mandate
of the learned Arbitrator, no such direction as prayed can be issued,
especially having regard to the fact that not only does the subject agreement
predate the 23rd October, 2015 amendment brought about in the Arbitration
and Conciliation Act, 1996 but also for the reason that even though the
arbitration proceedings have been on, according to the counsel for the
petitioner, since November/December, 2018, no challenge was laid to the
Arbitrator's appointment. The instant petition was filed on 11.01.2019.
12.1 Besides this, even if I were to hold that the amended 1996 Act
applies, a perusal of the Arbitrator's declaration dated 12.12.2018 shows that
he has been appointed as an Arbitrator by the respondent in only one more
case apart from the matter in issue. The Fifth Schedule of the amended 1996
Act which sets out the grounds which could give rise to justifiable doubts as
to an arbitrator's independence or impartiality under Clause 22 requires a
red flag to be raised when a person within the past three years has been
appointed as an Arbitrator on two or more occasions by one of the parties or
its affiliate; clearly this position does not obtain in the instant case.
13. In these circumstances, I am not inclined to interfere with the matter
concerning appointment of the Arbitrator. To be noted, no other aspect was
raised in the course of arguments.
14. The petition is, accordingly, dismissed.
15. For the purposes of good order and record, the Registry will scan and
upload the proceeding sheets dated 11.1.2019 and 16.1.2019.
RAJIV SHAKDHER, J
JANUARY 18, 2019
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