$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 02.02.2022
+ ARB.P. 5/2022
M/S INCRED FINANCIAL SERVICES LTD. ..... Petitioner
Through: Mr. Puneet Bajaj, Advocate
Versus
M/S SHREE KAMAKSHI MOTORS & ORS. ..... Respondents
Through: Mr. Abhishek Sikdar & Ms. Pallavi
Ray, Advocates
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (oral)
1. The present petition has been filed by the petitioner under Section 11
(6) of the Arbitration and Conciliation Act, 1996 seeking appointment of
Arbitrator for adjudication of disputes with respondents.
2. Petitioner -M/s InCred Financial Services Ltd. claims to be is
providing various type of finance facility to its numerous
customer/borrower. Petitioner claims that in the course of business,
respondent No.1 through respondents No.2 & 3 approached the petitioner
for obtaining Working Capital Channel Finance of Rs.1,00,00,000/- (Rupees
One Crore only) and Working Capital Term Loan of Rs.50,00,000/- (Rupees
ARB.P. 5/2022 Page 1 of 5 Fifty Lacs only) and relying on the requests of the respondents, the
petitioner vide letter dated 30.04.2018 sanctioned total limit of
Rs.1,00,00,000/-. In addition, extension of Working Capital Finance of
Rs.1,00,00,000/- was executed through Addendum Sanction by Petitioner
for the sum of Rs.1,00,00,000/-. Petitioner claims to have entered into
Master Facility Agreement dated 04.05.2018 at Delhi for Working Capital
Channel Finance of Rs.1,00,00,000/- (Rupees One Crore only) and Working
Capital Term Loan of Rs.50,00,000/ (Rupees Fifty Lacs only) and also
furnished Deed of Guarantee dated 04.05.2018 for a sum of Rs.1,00,00,000/-
for guaranteeing the obligations of the borrower. The parties also entered
into Loan Agreements, executed Annexure-I and Annexure-II being
Demand Promissory Note and Additional Condition for Disbursement.
According to petitioner, by entering into Master Facility Agreement and
signing all the documents respondents bounded themselves by the terms and
conditions stated therein. However, respondents failed to maintain financial
discipline and further failed to regularly pay the principal and interest due
under the loan agreement and also failed to respond to petitioner's calls and
so, petitioner was constrained to issue Loan Recall notice dated 12.03.2020.
3. Further, petitioner claims to have filed a petition under Section 9 of
ARB.P. 5/2022 Page 2 of 5 the Act being OMP (I) Comm. 18/2021 before the District Courts, New
Delhi ,whereunder the court granted interim relief vide order dated
03.02.2021 and restrained the respondents from creating third party interest
in respect of certain properties. Thereafter, petitioner vide notice dated
26.06.2021 invoked arbitration in terms of Clause- 15 (b) of the Loan
Agreement/ Master Facility Agreement calling upon the respondents to
agree to the appointment of Sole Arbitrator from the list of three arbitrators
mentioned in the said notice. The aforesaid petition being OMP (I) Comm.
18/2021 was disposed of vide order dated 17.08.2021 observing that since
arbitration proceedings are going to commence, the interim order shall
remain in force till disposal of application under Section 17 by the learned
Arbitrator.
4. Having received no reply from respondent to the notice dated
26.06.2021, petitioner claims to have sent a reminder notice dated
21.08.2021, however, it was also not replied and petitioner appointed Mr.
Amit Jagga, Advocate as the sole Arbitrator. Thereafter, respondent vide its
letter dated 24.08.2021 suggested name of Shri Sohit Chaudhary, Advocate
as Sole Arbitrator and so, Mr. Amit Jagga, Advocate recused himself to act
as the sole Arbitrator in this case. Hence, the present petition has been filed.
ARB.P. 5/2022 Page 3 of 5
5. Learned counsel for petitioner has submitted that in the facts and
circumstances of this case, this is a fit case for appointment of an Arbitrator
by this Court for adjudication of disputes between the parties.
6. Learned counsel appearing on behalf of respondent submits that the
claims raised in the present petition are disputed, however, fairly conceded
that the disputes inter se parties are arbitrable. Learned counsel also
submitted that respondent has no objection if disputes are referred to an
independent arbitrator appointed by this Court.
7. Since counsel representing both the sides have consented that the
disputes are arbitrable and an independent Arbitrator be appointed by this
Court, the present petition is allowed.
8. Accordingly, Mr. Ajay Kumar Jain, Advocate (Mobile:
9810049722) is appointed the sole Arbitrator to adjudicate the dispute
between the parties.
9. 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) (Administrative Cost and Arbitrators Fees)
Rules, 2018.
ARB.P. 5/2022 Page 4 of 5
10. The learned Arbitrator shall ensure compliance of Section 12 of
Arbitration and Conciliation Act, 1996 before commencing the arbitration.
11. The present petition and pending application, if any, are accordingly
disposed of.
(SURESH KUMAR KAIT) JUDGE FEBRUARY 02, 2022 r
ARB.P. 5/2022 Page 5 of 5
