Delhi High Court
M/S Kanodia Technoplast Limited vs M/S A.P. Trading Company on 28 January, 2022
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 28.01.2022
+ ARB.P. 403/2021
M/S KANODIA TECHNOPLAST LIMITED ..... Petitioner
Through: Mr. Anand Shankar Jha, Shubham
Tripathi for Petitioner.
Versus
M/S A.P. TRADING COMPANY ..... Respondent
Through: Mr.Anirudh Bakhru & Ms.Srishti
Khanna, 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 the respondent.
2. Petitioner-company, registered under the Companies Act, 1956,
claims to be engaged in the business of making laminated pouches for
mouth freshners, tobacco, pan masala and other food items. It claims to have
come into business with respondent, a sole proprietorship firm, in April,
2017 for supply of paper.
3. According to petitioner, on 18.09.2019, respondent filed an
application before the National Company Law Tribunal (NCLT) to initiate
Corporate Insolvency Resolution Process against the petitioner and claimed
an amount of Rs.8, 56,07,464/- in default. Upon being served with the notice
of the said application, petitioner on 14.11.2019 filed its reply before the
NCLT challenging the claims raised by the respondent herein. Further
claimed by petitioner that during pendency of those proceedings, respondent
approached the petitioner to amicably resolve the matter and parties entered
into a Memorandum of Understanding dated 02.03.2020, wherein schedule
for making the payments was agreed upon between the parties. Pursuant
thereto, the respondent withdrew the application before NCLT on
03.03.2020.
4. However thereafter, according to petitioner, due to nationwide lock
down in 23.03.2020 and covid pandemic, the petitioner was able to do
business only a limited capacity and therefore, held meetings with
respondent and prayed for 18 months moratorium period. It was agreed that
in terms of Memorandum of Understanding dated 02.03.2020, petitioner
shall make the payment of agreed amount in easy instalments of Rs.50 Lacs
per month, however, respondent presented the cheques handed over by the
petitioner to the respondent for encashment and initiated proceedings under
Section 138 of the Negotiable Instruments Act, 1881.
5. Thereafter, petitioner claims to have invoked vide Notice dated
21.01.2021 in terms of Clause-13 of the aforesaid Memorandum of
Understanding dated 02.03.2021. However, since no reply thereto was
received by the petitioner, therefore, the present petition is filed seeking
appointment of an Arbitrator by this Court.
6. Mr.Anirudh Bakhru, Advocate, entered appearance on behalf of
respondent and filed reply to the present petition. In the reply, respondent
has disputed the averments made in the present petition as well as claims
raised by the petitioner. During the hearing, it was submitted that the
petitioners gave false representations that the entire outstanding amount
shall be released, however, only a meagre amount was paid to the
respondent.
7. Pertinently, existence of Memorandum of Understanding dated
02.03.2021 is not disputed. It is also not disputed that the disputes between
the parties are arbitrable in terms of Clause-13 thereof and that petitioner has
invoked arbitration vide notice dated 21.01.2021. Though the parties have
disputed the claims raised by the other side, however, have jointly consented
to appointment of Mr. Justice (Retd.) J.R.Midha as Arbitrator in this case.
8. Accordingly, Justice (Retd.) J.R.Midha (Mobile: 9910384619) 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.
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 28, 2022/r
