Delhi High Court
Quazar Infrastructure Pvt. Ltd. vs National Agriculture ... on 25 September, 2019
$~A-35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25.09.2019
+ ARB.P. 547/2019
QUAZAR INFRASTRUCTURE PVT. LTD. .....Petitioner
Through: Mr. Faiyaz Hasan, Advocate
versus
NATIONAL AGRICULTURE
CORPORATIVE MARKETING FEDERATION
OF INDIA LTD. (SOCIETY REGISTERED
UNDER THE MULTI STATE CO-OPERATIVE
SOCIETIES ACT) .....Respondent
Through: Mrs. Gouri K. Mohanti and Ms. Anu
Gupta, Advocates
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J. (ORAL)
1. This is a petition under Section 11 of the Arbitration & Conciliation
At, 1996 („Act‟) for appointment of a Sole Arbitrator for adjudication
of disputes between the parties related to a work order dated
14.02.2017.
2. Learned counsel for the petitioner submits that the initial work under
the work order was completed and in fact the petitioner had executed
more work than what was to be executed. Not having received the
payments for the extra work done, the petitioner invoked the
Arbitration Clause on three occasions viz. 03.01.2017, 01.02.2018 and
finally on 07.03.2019, for appointment of an Arbitrator. He submits
that despite the said notices, the respondent had failed to appoint the
Arbitrator. The Arbitration Clause in the agreement reads as under:
"ARBITRATION
Any disputes arising from this agreement shall be referred to
Arbitrator appointed by the Managing Director of NAFED in
accordance Arbitration and Conciliation Act, 1996 as amended
from time to time where decision will be final and binding."
3. The respondent has filed a counter affidavit. Learned counsel for the
respondent submits that increased quantity of work done does not
make out a claim for Arbitration. It is submitted that the petition is
not maintainable as the claim made for "increased quantity of work
done does not prima facie make out a claim for arbitration". It is
further submitted that Billing of Quantity („BOQ‟) clearly mentions
quantity as per actual site and the rate on lumpsum basis. Her
contention is that for entertaining an application under Section 11 of
the Act, there ought to be in existence, prima facie, a bonafide
arbitrable claim qua the contract.
4. I have heard the learned counsels for the parties.
5. The Act was amended with effect from 23.10.2015 and sub-section 6A
was added to Section 11. The said sub-section 6A clearly stipulates
that while considering an application under Section 11(6) Court would
confine to the examination of the existence of an arbitration
agreement. Section 11(6A) reads as under:
"11.(6A) The Supreme Court or, as the case may be, the
High Court, while considering any application under sub-
section (4) or sub-section (5) or sub-section (6), shall,
notwithstanding any judgment, decree or order of any Court,
confine to the examination of the existence of an arbitration
agreement."
6. A recent judgment of the Apex Court in the case of M/s Mayavati
Trading Pvt. Ltd. Vs. Pradyuat Deb Burman, Civil Appeal No.
7023/2019 decided on 5.9.2019 has reinforced that the Court while
deciding a petition under Section 11 of the Act has to consider only
the existence of the Arbitration Agreement between the parties.
Relevant portion of the judgment of the Apex Court is as under:
"10) This being the position, it is clear that the law prior to the
2015 Amendment that has been laid down by this Court, which
would have included going into whether accord and satisfaction
has taken place, has now been legislatively overruled. This
being the position, it is difficult to agree with the reasoning
contained in the aforesaid judgment as Section 11(6A) is
confined to the examination of the existence of an arbitration
agreement and is to be understood in the narrow sense as has
been laid down in the judgment Duro Felguera, S.A. (supra) -
see paras 48 & 59.
11) We, therefore, overrule the judgment in United India
Insurance Company Limited (supra) as not having laid down
the correct law but dismiss this appeal for the reason given in
para 3 above."
7. Respondent has not denied the existence of the Arbitration Clause
between the parties. Respondent has also not denied the receipt of
notice invoking arbitration sent by the petitioner.
8. Having considered the contention of the parties, in my view, there is
no merit in the objection raised by the respondent in view of the
Arbitration and Conciliation (Amendment) Act, 2015 and the
judgment of the Apex Court in M/s Mayavati Trading Pvt. Ltd.
(supra).
9. I hereby appoint Mr. Pradeep Chadha, Retired District Judge, as Sole
Arbitrator to adjudicate the disputes between the parties.
10. The address and mobile number of the learned Arbitrator is as under:
Mr. Pradeep Chadha,
Former District and Sessions Judge
R/o 37/29, East Patel Nagar, New Delhi-110008,
Mobile: 9910384665
11. The learned Arbitrator shall give disclosure under Section 12 of the
Act before entering upon reference.
12. Fee of the Arbitrator shall be fixed as per Fourth Schedule of the Act.
13. The petition is allowed in the aforesaid terms.
JYOTI SINGH, J
SEPTEMBER 25, 2019
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