Delhi High Court
Cars 24 Financial Services Private ... vs Sanjay Mathews Proprietor Of M/S Benkus ... on 22 October, 2024
Author: Sachin Datta
Bench: Sachin Datta
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 22.10.2024
+ ARB.P. 1150/2024
CARS 24 FINANCIAL SERVICES PRIVATE LIMITED....Petitioner
Through: Mr. Anurag Arora, Adv. (through v/c)
versus
SANJAY MATHEWS PROPRIETOR OF M/S BENKUS MOTORS
AND ANR. .....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
SACHIN DATTA, J. (ORAL)
1. The present petition under Section 11(6) of the Arbitration and
Conciliation Act, 1996 (hereinafter referred as 'A&C Act') seeks
appointment of a Sole Arbitrator to adjudicate the disputes between the
parties.
2. The disputes between the parties have arisen in the context of a Credit
Facility Agreement dated 30.07.2021 entered into between the petitioner and
the respondents, in terms of which the respondent no.1 was the borrower,
whereas the respondent no.2 was the co-borrower.
3. Disputes have arisen between the parties on account of alleged default
on the part of the respondents in paying the tranches/instalments under the
aforesaid agreement.
4. The agreement between the parties contains an Arbitration Clause as
under-
"15.2. Arbitration: Any dispute under this Agreement shall be settled
by binding arbitration conducted in English with the seat of arbitration
in New Delhi before a single arbitrator appointed by Lender and its
sole discretion, as per the Arbitration and Conciliation Act, 1996."
5. Disputes having arisen between the parties, a "Finance/Credit Facility
Recall Notice-cum-Proposal" dated 09.05.2024 was issued by the petitioner
to the respondents for appointment of a Sole Arbitrator.
6. Vide the said communication, the petitioner, referring to the failure on
the part of the respondents in making the requisite payment in terms of the
Credit Facility Agreement, inter alia, proposed constitution of an Arbitral
Tribunal comprising of a Sole Arbitrator to adjudicate the disputes between
the parties. However, no response to the aforesaid notice was sent by the
respondents.
7. Consequently, the petitioner has approached this Court, through the
present petition, seeking appointment of a Sole Arbitrator to adjudicate the
disputes between the parties.
8. It is noticed that the aforesaid communication dated 09.05.2024,
whereby the arbitration was invoked, was delivered to the respondents, as is
evident from the postal receipt filed by the petitioner. Yet no reply thereto
was given by the respondent.
9. In the present proceedings, notice was issued on 01.08.2024. The
petitioner has taken the requisite steps to serve the respondents at its known
address. The communication sent to the said address via speed post was
returned with the notation, "item returned refused". In addition, the
respondent has also been served via email at [email protected]
and via whatsapp at +918178282807 and +919910359445. As such, the
petitioner has discharged its onus to effect service on the respondent. It is
noticed that Section 3 of the Arbitration and Conciliation Act, 1996
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.
10. In the aforesaid circumstances, the matter has been taken up for
hearing and disposal.
11. Since the existence of the arbitration clause is evident from a perusal
of the Credit Facility 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. Himanshu Goel, Advocate (Mob. No.: 9810215487)
is appointed as the Sole Arbitrator to adjudicate the disputes between the
parties.
13. Prior to adjudication of the dispute on merits, the learned Sole
Arbitrator is requested to encourage the parties to arrive at a settlement
through mediation or any procedure as may be considered appropriate by the
learned Arbitrator, as contemplated under Section 30(1) of the A&C Act.
14. The learned Sole Arbitrator may proceed with the arbitration
proceedings subject to furnishing to the parties requisite disclosures as
required under Section 12 of the A&C Act.
15. The learned Sole Arbitrator shall be entitled to fee in accordance with
IV Schedule to the A&C Act; or as may otherwise be agreed to between the
parties and the learned Sole Arbitrator.
16. The parties shall share the arbitrator's fee and arbitral costs, 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 Arbitrator
on their merits, in accordance with law.
18. Needless to say, nothing in this order shall be construed as an
expression of this court on the merits of the case.
19. The present petition stands disposed of in the above terms.
SACHIN DATTA, J
OCTOBER 22, 2024/sl
