Delhi High Court
Sony India Private Limited vs It Care on 4 November, 2024
Author: Sachin Datta
Bench: Sachin Datta
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 04.11.2024
+ ARB.P. 1502/2024
SONY INDIA PRIVATE LIMITED .....Petitioner
Through: Ms. Astha Sehgal, Ms. Ishi Singh,
Advs.
versus
IT CARE .....Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
SACHIN DATTA, J. (Oral)
1. The present petition filed under section 11 of the Arbitration and
Conciliation Act, 1996 (hereinafter 'the A&C Act') seeks appointment of a
Sole Arbitrator to adjudicate the disputes between the parties.
2. The parties executed a Service Agreement (hereinafter 'the Principal
Agreement') dated 01.04.2021, in terms of which respondent was authorized
by the petitioner to operate as an Authorised Service Centre (hereinafter
"ASC') at Jagdalpur and Bhillai, Chhattisgarh. The Principal Agreement was
renewed twice for a period between 01.04.2022 to 31.03.2023 and
01.04.2023 to 31.03.2024.
3. Dispute/s have arisen between the parties on account of alleged
violations of the Standard Operating Procedure (hereinafter 'SOP') on the
part of the respondent while operating the ASC. The petitioner alleged that
the improper conduct of respondent amounts to fraud upon both the
petitioner and its consumers and consequently imposed a penalty of Rs.
90,769/- upon the respondent.
4. It is submitted by the petitioner that the Service Agreement for ASC
at Jagdalpur was terminated pursuant to the request of the respondent vide
email dated 29.03.2023. Further, the petitioner terminated the Service
Agreement for ASC Bhillai on 12.10.2023.
5. The arbitration clause in the Agreement between the parties, is in the
following terms: -
"14.1 Any disputes arising out of or relating to this Agreement shall,
in the first instance, be attempted to be resolved amicably between the
Parties. In the event of failure to mutually resolve the dispute, the
matter shall be referred for arbitration by a Sole Arbitrator to be
nominated by Sony India. The proceedings shall be conducted in
accordance with the procedure set out under the provisions of the
Arbitration and Conciliation Act, 1996 as amended or modified from
time to time. The proceedings shall be in English. The Seat of
Arbitration shall be at New Delhi. "
6. Disputes having arisen between the parties, a legal notice dated
28.03.2024 was issued by the petitioner followed by a demand notice cum
notice for invoking arbitration on 15.07.2024. However, the respondent
failed to respond to the same. The petitioner has placed on record the
relevant postal receipt to show that the said communication was delivered to
the respondent.
7. In the above circumstances, the petitioner has approached this Court,
through the present petition, seeking the appointment of a sole arbitrator to
adjudicate the dispute.
8. In the present proceedings, notice was issued by the Court on
26.09.2024 with a liberty to the respondent to file reply, if any within two
weeks from the date of service. The petitioner has taken the requisite steps
to serve the respondent at its known addresses. However, the
communications sent to the said addresses via speed post were returned with
the notations, "Item returned, addressee left without instructions" and "item
returned refused" whereas the communications sent via Courier were
returned with the notations "consignee shifted from the given address" and
"consignee's address incomplete/incorrect".
9. The respondent is stated to have been served via email at
[email protected] and [email protected].
10. Section 3 of the A&C Act contemplates that a written communication
is deemed to have been received if it is sent to the addressee's last known
place of business or mailing address by any means which provides a record
of the attempt to deliver it. In the present case, the petitioner has made
numerous attempts to effect service on the respondent not only at the last
known address/es but also at the other addresses of the respondent and has
thereby discharged its onus to effect service on the respondent.
11. Since the existence of the arbitration clause is evident from a perusal
of the Service Agreement, there is no impediment in appointing an
independent Sole Arbitrator for adjudicating the disputes between the parties
as prayed for, as mandated in terms of the judgments of the Supreme Court
in Perkins Eastman Architects DPC v. HSCC (India) Ltd (2020) 20 SCC
760, TRF Limited v. Energo Engineering Projects Ltd, (2017) 8 SCC 377,
Bharat Broadband Network Limited v. United Telecoms Limited., 2019
SCC OnLine SC 547 and Interplay between Arbitration Agreements under
the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In
re, 2023 SCC OnLine SC 1666.
12. Accordingly, Mr. Dhruv Pande, Advocate (Mob. No.:
+91.9910165010) is appointed as the Sole Arbitrator to adjudicate the
disputes between the parties.
13. The respondent shall be at liberty to raise preliminary objections as
regards arbitrability/jurisdiction, if any, which shall be decided by the
arbitrator, in accordance with law.
14. The learned Sole Arbitrator may proceed with the arbitration
proceedings subject to furnishing to the parties requisite disclosure as
required under Section 12 of the A&C Act.
15. The learned Sole Arbitrator shall be entitled to fee in accordance with
the IVth Schedule of the A&C Act; or as may otherwise be agreed to
between the parties and the learned Sole Arbitrator.
16. Parties shall share the arbitrator's fee and arbitral cost, equally.
17. All rights and contentions of the parties in relation to the
claims/counter claims are kept open, to be decided by the learned Sole
Arbitrator on their merits, in accordance with law.
18. Needless to say, nothing in this order shall be construed as an
expression of opinion of this court on the merits of the case.
19. The present petition stands disposed of in the above terms.
SACHIN DATTA, J
NOVEMBER 4, 2024/sl
