Delhi High Court
Ms Tempo Appliances P Ltd vs Mrs Khalida Begum & Ors. on 20 January, 2022
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20.01.2022
+ ARB.P. 1180/2021
EVAM CONSTRUCTIONS PVT LTD. ..... Petitioner
Through: Mr. Manish Kumar, Advocate
Versus
WEI GROW HOTEL CONCEPTS PVT LTD KYLIN & ORS.
..... Respondent
Through: Nemo.
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
of the Arbitration and Conciliation Act, 1996 seeking appointment of
Arbitrator for adjudication of disputes with the respondents.
2. At the outset, learned counsel for petitioner has submitted that
defendants No.2 & 3 are proforma parties and the present petition is pressed
against defendant No.1 only.
3. As per office report, defendant No.1 is served through ordinary
process, however, none has appeared its behalf. It seems respondent No.1
has nothing to oppose in the present petition.
4. Petitioner claims to be a Contractor, who has implemented civil and
interior related works at Kylin Restaurant, 309 Ambience Mall, Vasant
Kunj, New Delhi, i.e. the premises of respondent in terms of Work Order
dated 10.08.2018.
5. According to petitioner, pursuant to the aforesaid Work Order dated
10.08.2018, petitioner commenced the work on the said premises and on
14.09.2012 petitioner submitted a proforma of works to the respondent and
certain disputes arose with regard to payment of Rs.1,67,41,398.041/-
between the parties. Thereafter, by virtue of notice of demand dated
21.02.2011 petitioner invoked arbitration and in terms of arbitration clause
called upon Mr. Sumeet Nath, Architect of respondent-company to act as
sole Arbitrator. However, since the learned Arbitrator did not commence the
arbitration proceedings, petitioner sent e-mails dated 19.03.2011 and
17.07.2012 reminding him of delay in arbitration proceedings. Thereafter,
on 23.07.2012 respondent also sent a letter to the Arbitrator to commence
arbitration proceedings and the learned Arbitrator vide its letter dated
21.08.2012 intimated the parties the first date of hearing as 04.09.2012.
6. According to petitioner, on 14.09.2012 petitioner submitted its claims
to the tune of Rs.1,67,41,398.04/- with the learned Arbitrator, however,
thereafter arbitration did not proceed further. Petitioner also claims to have
given reminders to the learned Arbitrator but to no avail Thereafter,
petitioner sent a legal notice dated 12.03.2019 to the respondent terminating
the mandate of learned Arbitrator i.e. Mr. Sumeet Nath and appointed
Mr.Pradeep Gaur, Advocate in his substitution. Since the petitioner again
did not receive any reply to the said legal notice dated 12.03.2019, a petition
[OMP (I) comm. No- 6/2019] before the learned trial court for substitution
of the Arbitrator, which was dismissed on 05.02.2021 holding that in view
of Section 29A (4) of Arbitration Act there was no ground to terminate the
mandate of arbitral tribunal and also that under the provisions of Section 11
of the Act, remedy lies before this Court. Hence, the present petition.
7. Upon hearing and perusal of petition and material placed on record,
this Court finds that Clause-14 of the Work Order dated 10.08.2012
contemplates that disputes between the parties shall be referred to
designated Architect / Consultant of the respondent. Further, petitioner by
virtue of notice of demand dated 21.02.2011 invoked arbitration and also
appointed the Architect of respondent as Arbitrator, who commenced the
arbitral proceedings, however, arbitral proceedings did not progress and
thereby, the arbitral tribunal failed to publish the Award within the time
stipulated of twelve months under the provisions of Section 29A of the
Arbitration and Conciliation Act, 1996. Pertinently, by virtue of Hon'ble
Supreme Court's decision in Perkins Eastman Architects DPC & Anr. Vs.
HSCC (India) Ltd. 2019 SCC Online SC 1517 the aforesaid Clause-14 of
the Work Order dated 10.08.2012 has become null and void, as in the said
decision it has been categorically stated that "no single party can be
permitted to unilaterally appoint the Arbitrator, as it would defeat the
purpose of unbiased adjudication of dispute between the parties". In view of
decision in Perkins Eastman (Supra), even the proposal of petitioner
appointing Mr. Pradeep Gaur, Advocate as Arbitrator is also thereby
rejected. Furthermore, by virtue of Clause-15 of the Work Order dated
10.08.2012, the jurisdiction of all legal matters shall be Delhi.
8. Accordingly, this Court appoints Mr. Sukhdev Singh, DHJS (Retd.)
(Mobile: 9910384682) the sole Arbitrator to adjudicate the dispute between
the parties.
9. The fee of the learned Arbitrator shall be governed by the Fourth
Schedule of the Arbitration and Conciliation Act, 1996.
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
JANUARY 20, 2022
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