Delhi High Court
Nandini Bhatia vs Navil Ratish Kadwadkar on 18 June, 2020
$~1(original side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ O.M.P.(I) 4/2020 & I.A. 4438/2020, I.A. 4439/2020
NANDINI BHATIA ..... Petitioner
Through: Mr. Mohit Chaudhary and Ms.
Srishti Gupta, Advs.
versus
NAVIL RATISH KADWADKAR ..... Respondent
Through: Mr. Sanjoy Ghose with Ms.
Urvi Mohan, Adv. for the
respondent Mr. Puneet Bajaj,
Adv. for the complainant
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 18.06.2020
(by video-conferencing)
1. This is a petition, preferred by the petitioner-Nandini Bhatia,
under Section 9 of the Arbitration and Conciliation Act, 1996
(hereinafter referred to as the "1996 Act").
2. According to the recital of facts in the petition, the petitioner
and the respondent were married and, subsequently, have been
estranged since 2016.
3. It appears that the petitioner had filed various cases against the
respondent, inter alia, Section 12 of the Protection of Women from
Domestic Violence Act, 2005, Section 125 of the Code of Criminal
Procedure Code, 1973 and Section 498-A and 406 read with Section
34 of Indian Penal Code (IPC).
4. We are not, however, particularly concerned with the said
litigations in the present case.
5. During the course of these proceedings, Bail Appl. 471/2019
was preferred, by the respondent, before this Court.
6. The present petition asserts that, in the said proceedings, the
respondent undertook to pay ₹ 1.25 lakhs per month, as maintenance
to the petitioner alongwith fees for the school education of the
daughter of the petitioner and the respondent.
7. The petitioner asserts that, though the said amounts were paid,
by the respondent, till December, 2019, there has been no payment by
the respondent, thereafter.
8. It appears that matter was referred for mediation, but that the
efforts proved futile.
9. The petitioner further states that, on 17th October, 2019, an
irrevocable Family Settlement was entered into, between the petitioner
and the respondent, according to which an amount of ₹ 9.75 crores
was payable by the respondent to the petitioner.
10. It is further asserted in the petition, that clause 8 of the
irrevocable family settlement, dated 17th October, 2019, contained a
clause whereby disputes between the parties were referable for
arbitration by Mr. S.S. Handa, (Retd.) District & Sessions Judge.
11. It is also asserted that, pursuant thereto, on 21st October, 2019, a
cheque of ₹ 9.75 crores was, in fact, issued by the respondent, in
favour of the petitioner, but was dishonoured on 23 rd October, 2019,
on the ground of insufficient funds. consequent to which the petitioner
has initiated proceedings against the respondent under Section 138 of
the Negotiable Instrument Act, 1881, before the learned Metropolitan
Magistrate, Saket, asserting that she has no other source of income.
12. This petition has been preferred by the petitioner under Section
9 of the 1996 Act, the prayer clause in which reads as under:
"a. Pass an order directing Respondent to make admitted
payment of Rs.1.25 Lacs/Month towards maintenance (from
Jan 2020 till date) and further pay agreed school fee for the
child, in terms of the Intimation sent by school, on urgent
basis,
b. Pass an order granting ad-interm injunction in favour
of the Petitioner and against the Respondent by securing the
amount in dispute by way of attachment of any moveable
and/or immovable property(ies) worth Rs. 9.75 Crores and/or
c. Pass an order directing the Respondent to continue
paying the agreed amount of Rs.1.25 Lacs towards
maintenance along with the school fee of the child till
disposal of arbitration and/or
d. Pass any other appropriate orders, directions that this
Hon'ble Court may deem fit in the facts and circumstances of
the present case."
13. In response to a query from the Bench, Mr. Mohit Chaudhary,
learned counsel for the petitioner, submits that, in fact, Mr. S.S.Handa,
the learned sole arbitrator, has already been appointed and has entered
on the reference.
14. That being so, this petition would not be maintainable, in view
of Section 9(3) of the 1996 Act and the petitioner would, if at all, have
to move the learned sole arbitrator, under Section 17 thereof.
15. On the last date of hearing, Mr. Mohit Chaudhary, learned
counsel for the petitioner, had submitted that he has invoked Section 9
of the 1996 Act, as owing to the currently prevailing COVID-2019
pandemic and the restrictions that have resulted as a consequent
thereof, it would be difficult for him to move the learned sole
arbitrator under Section 17 thereof. However, subsequently, it appears
that the learned sole arbitrator has agreed to consider the application
under Section 17 of the 1996 Act, if moved by the applicant.
16. That being so, it is clear that no occasion arises, for this Court,
to pass any order in the present proceedings, especially in view of the
bar contained in Section 9 (3) of the 1996 Act, which reads thus:
"Section 9. Interim measures, etc., by Court.
xxx xxx xxx
(3) Once the arbitral tribunal has been constituted, the
Court shall not entertain an application under sub-section (1),
unless the Court finds that circumstances exist which may not
render the remedy provided under section 17 efficacious.]
17. Mr. Sanjoy Ghose, learned counsel appearing for the
respondent, however, seriously contests the very genuineness of the
alleged irrevocable Family Settlement, dated 17th October, 2019, and
consequently, of the appointment of the learned sole arbitrator,
therein, and the jurisdiction of the learned sole arbitrator to adjudicate
on the dispute.
18. He submits that it is preposterous to assume that his client
would have agreed to pay an amount of ₹ 9.75 crores and that the
irrevocable Family Settlement was never consciously or voluntarily
entered into, by his client.
19. He, therefore, questions the very jurisdiction of the learned sole
arbitrator to adjudicate on this dispute, and presses for this objection
being taken on record, so that this order be not treated as any assent,
on his part, to the proceedings before learned sole arbitrator, or the
maintainability of the application under Section 17, proposed to be
moved by the petitioner before him.
20. The objection is taken on record. This Court, however,
abstains from returning any finding thereon.
21. The said objections, and their validity, are kept open and it shall
be open to the respondent to raise these objections before the learned
sole arbitrator by any means known to law.
22. Subject to the above observations, the present petition is
disposed of.
23. Copy of this judgment be uploaded on the website as soon as
possible and also forwarded to the counsel for the parties via email.
C. HARI SHANKAR, J
JUNE 18, 2020
dsn
