Pret Study By Janak Fashions ... vs Dhani Loans And Services Limited
2021 Latest Caselaw 2927 Del

$~20
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 26.10.2021

+      ARB.P. 1049/2021 & I.A.13814/2021
       PRET STUDY BY JANAK FASHIONS PRIVATE LIMITED
                                                   ..... Petitioner
                    Through  Ms.Vanika Gupta, Adv.

                          versus

       DHANI LOANS AND SERVICES LIMITED       ..... Respondent
                    Through  Ms.Sangeeta Sondhi, Ms.Ruchi Gour
                             Narula & Mr.Gorang Goyal, Advs.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           J U D G M E N T (oral)

1. The relief sought in the present petition before this Court is to appoint

sole Arbitrator under Section 11(6) of the Arbitration and Conciliation Act,

1996 to adjudicate the dispute between the parties.

2. Pertinently, petitioner is engaged in the business of retail of garments

all over the country under its brand "Study by Janak" and has become one

stop shop for luxury Indian designer wear and couture for its customers. On

the other hand, respondent is a Non-Banking Financing Company (NBFC).

3. As per the version of petitioner, it got sanctioned three loan facilities

from the respondent of Rs.15 crores vide agreement dated 25.04.2018;

Rs.1.60 crores vide agreement dated 28.04.2018; and Rs.10 lakhs vide

agreement dated 28.04.2018 but the present petition is with respect to the

loan facility of Rs.15 crores only. Petitioner got sanctioned a loan facility of

Rs.15 crores against property from the respondent and the loan was on

adjustable interest rate for a period of 144 months by way of 144 equated

monthly instalments starting from 05.06.2018 till August 2030. As per the

repayment schedule dated 13.07.2018, total number of EMIs were increased

from 144 months to 147 months i.e. until 05.08.2030 and rate of interest was

also increased from 12% p.a. to a fixed rate of interest of 12.20% p.a. w.e.f.

05.07.2018, after first instalment paid on 05.06.2018 without any prior

intimation. Thereafter on 05.09.2018, respondent increased rate of interest

from 12.20% p.a. to 12.50% and from then onwards, respondent increased

rate of interest upto 15.95% p.a. on 05.02.2019.

4. Counsel for the petitioner further submits that petitioner received

revised repayment schedule dated 27.12.2019 from the respondent as per

which respondent increased the term of EMIs of the loan facility from 144

months to 379 months. Upon this, petitioner made a written complaint to the

respondent for arbitrary and wrongful increased rate of interest without prior

intimation or consent of the petitioner. Petitioner also stated in the complaint

that as per the guidelines of the Reserve Bank of India, increase in the rate

of interest ought to be made applicable after intimation and confirmation by

the borrower, therefore, enhanced rate of interest could not be made

applicable prior to that date. However, respondent did not respond to the

abovesaid complaint of the petitioner.

5. It is further submitted that in the month of November, 2020, petitioner

again approached the respondent for releasing of one of three properties

situated at Karol Bagh, New Delhi secured against the three loans and in

return, petitioner was willing to partially prepay all three loan facilities.

Upon this, respondent issued a conditional No Objection Certificate (NOC)

on 13.01.2021 wherein it was agreed to release the said property subject of

payment of Rs.14,83,95,000/-. On 15.01.2021, petitioner made the payment

and requested the respondent to release the charge against the property

situated at Karol Bagh in respect of the conditional NOC wherein as per the

NOC, respondent was to adjust Rs.14,78,09,904/- towards the principal of

loan facility of Rs.15 crores and an amount of Rs.5,85,096/- would be left as

principal outstanding amount which had to be paid by the petitioner.

Thereafter, respondent had illegally deducted EMI of Rs.2,52,088/- from

petitioner's bank account since 05.02.2021 and on 23.06.2021 issued a

notice under Section 13(2) of the SARFAESI Act.

6. At the hearing, learned counsel for petitioner submitted that petitioner

has already invoked arbitration vide notice dated 19.08.2021 under clause 12

of the agreement and prayed this Court to appoint an Arbitrator to adjudicate

the disputes between the parties, which is not disputed by learned counsel

for respondent. However, the claims made in the present petition are

disputed and the same can be adjudicated by an Arbitrator.

7. Accordingly, Mr. Justice (Retd.) Vinod Goel (Mobile:9910384637)

is appointed sole Arbitrator to adjudicate the disputes between the parties.

8. The arbitration shall be conducted under the Delhi International

Arbitration Centre (DIAC). The fee of the Arbitrator shall be in accordance

with the schedule of fees prescribed under the Delhi International

Arbitration Centre (DIAC) (Internal Management) Rules and Delhi

International Arbitration Centre (Administrative Cost and Arbitrators' Fees)

Rules, 2018.

9. The learned Arbitrator shall ensure compliance of Section 12 of

Arbitration and Conciliation Act, 1996 before commencing the arbitration.

9. The present petition is accordingly disposed of.

10. A copy of this order be sent to DIAC and the learned Arbitrator for

information.

(SURESH KUMAR KAIT) JUDGE OCTOBER 26, 2021/ab