Delhi High Court
Mahalakshmi Infraengineers Pvt. ... vs Fakruddin Memorial Cooperative ... on 6 October, 2021
$~2 (original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 503/2021
MAHALAKSHMI INFRAENGINEERS PVT. LTD
..... Petitioner
Through: Mr. Bipin Kumar Prabhat, Adv.
versus
FAKRUDDIN MEMORIAL COOPERATIVE GROUP
HOUSING SOCIETY LTD ORS ..... Respondents
Through: Mr. Chirag Alagh, Adv. for R-1
&2
Mr.Anil Panwar, Adv. for R-3
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (O R A L)
% 06.10.2021
(Video-Conference)
1. At the outset, the Court notes that there was no justification for
impleading Respondent Nos. 1 and 2, being M/s Fakruddin Memorial
Cooperative Group Housing Society Ltd. ('the Society' in short) and
its president/secretary, respectively, as separate respondents.
Accordingly, the Court treats Respondent Nos. 1 and 2, together, as
the Society through the president/secretary.
2. Respondent Nos. 1 and 2 are represented by Mr. Chirag Alagh,
learned Counsel, whereas Respondent No.3 is represented by Mr. Anil
Panwar, learned Counsel. On 27th November, 2014, an agreement, for
construction of a residential project, at Plot No. 18, Sector-10,
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:13.10.2021
15:34:14
Dwarka, New Delhi-110075 was executed between the petitioner, as
the third party, Respondent No.3 as the second party and the society as
the first party.
3. According to the petitioner, owing to default by the
respondents, of their obligations, considerable delay in execution of
the work was occasioned. The petitioner is also aggrieved by the fact
that the bills raised by the petitioner were not honoured, in time, by
the respondents. This resulted in the petitioner issuing a notice dated
15th January, 2020 to the respondent to pay an amount of
₹3,34,07,056/-. This amount, has, according to Mr. Prabhat, learned
Counsel for the petitioner increased, with passage of time, the amount
due being, according to the petitioner's estimation at this point of
time, ₹4,01,21,845/-.
4. Clause 7 of the agreement provides for resolution of disputes
between the parties by arbitration and reads as under:
"7. Arbitration
7.1 Any differences arising out of or in connection with
the present agreement shall be amicably discussed and
resolved between the parties and in case such resolution could
not be reached within 60 days of raising of such dispute, then
the matter shall be referred to arbitration of sole arbitrator
appointed by consent of all the three parties to this agreement
and in case the parties fail to appoint an arbitrator mutually
then the same shall be appointed by moving appropriate
petition/application before the court and the decision of the
arbitrator shall be final and binding to the parties to this
agreement."
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:13.10.2021
15:34:14
5. On 20th June, 2020, the petitioner issued a notice invoking
arbitration under Clause 7 of the agreement, to the respondents.
Replies to this notice were sent by the society and the Respondent no.
3, separately.
6. As no arbitrator could be jointly appointed between the parties,
the petitioner has moved this Court under Section 11(6) of the 1996
Act, for appointment of an arbitrator.
7. Mr. Panwar, learned Counsel for Respondent No.3 objects to
the impleadment of his client in these proceedings submitting that his
client had nothing to do with the bills raised by the petitioner on the
society and that his client was the erstwhile contractor. He, therefore,
seeks that his client be deleted from the array of parties.
8. Responding to the submissions, Mr. Prabhat has pointed out
that the arbitration clause specifically envisages arbitration by consent
of all three parties to the agreement.
9. In view of the fact that the arbitration clause specifically
envisages consent of all three parties to the agreement and Respondent
No. 3 is one of the three parties to the agreement, no fault can be
found in the petitioner impleading Respondent No.3 in these
proceedings. Indeed, had the petitioner not impleaded Respondent
No.3, the petition itself may not have been maintainable.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:13.10.2021
15:34:14
10. No other objection, to the referring of the disputes to
arbitration, has been raised by the parties.
11. In view thereof, the disputes between the parties are referred to
arbitration. This Court appoints Ms. Smriti Sinha, learned Advocate
(Mobile Number: +91 9818199498 and E-mail ID :
[email protected]) as the Arbitrator to adjudicate on the disputes.
12. The learned Arbitrator would be entitled to charge fees in
accordance with the Fourth Schedule to the 1996 Act or as otherwise
fixed by the arbitrator in consultation with the parties.
13. The learned Arbitrator is also requested to submit the requisite
disclosure under Section 12(2) of the 1996 Act within a week of
entering on reference.
14. All contentions of the parties are left open and may be agitated
before the learned Arbitral Tribunal.
15. This petition stands allowed in the aforesaid terms with no
orders as to costs.
C. HARI SHANKAR, J
OCTOBER 6, 2021/kr
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:13.10.2021
15:34:14
