Delhi High Court
Tata Capital Limited vs M/S Goyal General Store & Anr. on 26 March, 2025
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~O-7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 44/2025
Date of Decision: 26.03.2025
IN THE MATTER OF:
TATA CAPITAL LIMITED .....Petitioner
Through: Mr. Savyasachi K. Sahai, Mr.
Vishvajeet Singh Singhania, Mr.
Aman Singhania and Mr. Madhumita
Bagchi, Advs.
versus
M/S GOYAL GENERAL STORE & ANR. .....Respondents
Through: None
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
JUDGEMENT
PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
1. The present petition has been filed under Section 11 of the Arbitration
and Conciliation Act, 1996 (the 1996 Act) by the petitioner, seeking
appointment of an Arbitrator to adjudicate upon the dispute(s) in terms of
clause 12 of the Loan-cum-Guarantee Agreement dated 07.07.2023.
2. The petitioner has filed affidavit of service which is as under:-
1. That I have been appointed as the advocate for the Petitioner in the
present matter. I am fully conversant with the facts and circumstances of
the present case on the basis of the records maintained by the Petitioner
and am as such competent to swear to the present affidavit.
2. That the present affidavit is being filed in pursuance of the Order dated
09.01.2025 by which this Hon'ble Court was pleased to issue notice to the
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Signing Date:04.04.2025 By:PURUSHAINDRA
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KUMAR KAURAV
Respondents in the present matter through all permissible modes.
3. That in compliance of the said Order dated 09.01.2025, the
Respondents were served the notice of the present proceedings through
Email, WhatsApp and Speed Post Heard learned counsel appearing on
behalf of the parties.
4. That the following email address of the Respondents' is available as per
the records of the Petitioner;
(i) [email protected]
5. It is stated that service of the notice of the present proceedings on the
above-mentioned email address of the Respondents was effected through
the email id of my associate i.e., [email protected]. It is submitted that the
said email dated 01.02.2025 was delivered to the aforesaid email id and
has not bounced back. True copy of the email dated 01.02.2025 has been
annexed herewith as Document-1.
6. That the following phone numbers with an active WhatsApp account of
the Respondents are available as per the records of the Petitioner;-
(i) Account No. 1: +91 76961 00450
(ii) Account No.2: +91 98726 18103
7. It is stated that the service of the notice of the present proceedings on
the WhatsApp accounts available on the above-mentioned numbers of the
Respondents was effected through my office on 01.02.2025. I state that a
copy of the summon issued by the Hon'ble Court and the Petition filed in
the present matter have been delivered to the above-mentioned WhatsApp
account of the Respondents. True copy of the service through WhatsApp
dated 01.02.2025 on the aforesaid WhatsApp Account No. 1 of the
Respondents has been annexed herewith as Document - 2. True copy of the
service through WhatsApp dated 01.02.2025 on the aforesaid WhatsApp
Account No. 2 of Respondent No. 1 has been annexed herewith as
Document- 3.
8. That the Respondents were also served the notice of the present
proceedings through speed post(s) dated 01.02.2025 on the following
addresses of the Respondents available as per the records of the
Petitioner:
MOHALLA GURUNANAKPURA,
OPPOSITE POST OFFICE, SAHNEW AL ROAD,
KIMA T RAI, DEHLON,
LUDHIANA, PUNJAB -141 118
DEHLON, LUDHIANA,
PUNJAB -141 118
True copy of the speed post receipts dated 01.02.2025 have been annexed
herewith as Document- 4 (Colly.).
9. That the tracking report of the speed post dated 01.02.2025 sent to the
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Signing Date:04.04.2025 By:PURUSHAINDRA
15:19:46
KUMAR KAURAV
above address of Respondent No.1 indicates that the speed could not be
delivered to the addressee with the remarks "Items Returned Refused".
True copy of the tracking report of the speed post sent to the address of
Respondent No. 1 has been annexed herewith as Document -5.
10. That the tracking report of the speed post dated 01.02.2025 sent to the
above address of Respondent No. 2 indicates that the speed could not be
delivered to the addressee with the remarks "Item Returned Refused". True
copy of the tracking report of the speed post sent to the address of
Respondent No. 2 has been annexed herewith as Document-6.
11. That the annexures are true correct of the respective originals.
12. That the contents of the above affidavit are true and correct
and no part of it is false and nothing material has been concealed
therefrom"
3. At this juncture, reference can be drawn to the case of Lease Plan
India (P) Ltd. v. Rudraksh Pharma Distributor1 wherein, this Court
permitted the service of the petition by e-mail and WhatsApp. The Court
held as follows:-
"7. It is nonetheless clear that the respondents have been duly served by
email and WhatsApp. It may be noted that the email address and the
mobile number of the respondents is mentioned in the Agreement itself [at
page Nos. 35, 37, 40 and 43 of the petition]. The affidavit of service dated
28.03.2024, affirmed by the authorised representative/legal counsel of the
petitioner - company, demonstrates service by both these modes.
8. Although service by email and WhatsApp is sufficient, it may also be
noted that in the Agreement itself, the address of the respondent for the
purposes of correspondence, provided in Clause 10.3, is the address at
which service has been attempted. The notice invoking arbitration sent to
the same address was reported to have been delivered, but in the Speed
Post report, by which the petition was sent to the address, it is stated that
no such person is available at the address."
4. In view of the aforesaid and the affidavit of service filed on behalf of
the petitioner, along with the steps taken to serve the notice via email and
dasti both, the Court is satisfied that the service has been duly completed.
5. Accordingly, this Court is left with no option but to proceed ex parte
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KUMAR KAURAV
against respondents. Ordered accordingly.
6. A perusal of the petition indicates that respondent No.1, through its
Sole Proprietor, availed a loan facility of Rs.45,00,000/- from the petitioner,
and respondent No.2 stood as a personal guarantor to respondent No.1. The
said loan amount was disbursed in terms of the Master Loan Agreement
dated 07.07.2023, incorporating various terms and conditions governing the
transaction. It is the case of the petitioner that respondent No.1 defaulted in
the repayment of the loan amount, whereupon, the petitioner issued a notice
dated 27.11.2024 under Section 21 of the Arbitration and Conciliation Act,
1996, invoking the arbitration clause and seeking amicable settlement of the
disputes. The petitioner claims that, as on date, the respondents are jointly
and severally liable to pay an outstanding amount of Rs.43,37,617/-, along
with pendente lite and future interest.
7. The Court takes note of the Arbitration Clause 12 of the Loan-cum-
Guarantee Agreement dated 07.07.2023., which reads as under:-
"12. Arbitration:
If any dispute, difference or claim arises between any of the
Obligors and the Lender in connection with the Facility or as to the
interpretation; validity, implementation or effect of the Facility
Documents or as to the rights and liabilities of the parties under these
T&Cs or alleged breach of the Facility Documents or anything done or
omitted to be done pursuant to the Facility Documents, the same shall
be settled by arbitration by a sole arbitration to be appointed as per the
procedure below and to be held at such place as agreed by the Parties
in Serial No. 17 of Annexure 1 hereto of the Agreement. The Party
invoking the arbitration ("Claimant') shall address a notice to the other
Party ("Respondent") suggesting the names of not more than three
arbitrators, all of whom shall be either retired judges of the District
Court, High Court or the Supreme Court or a lawyer having minimum
10 years' relevant experience. The Respondent shall either.
2024 SCC OnLine Del 2687
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(i) Confirm in writing acceptance of one amongst the proposed names
as the sole arbitrator to the Claimant within a period of ten (10) days
from the date of notice ("Notice Period"); or"
(ii) Convey objection, if any, in writing to the Claimant, against the
proposed names of the sole arbitrator within the said Notice Period.
However, if the Claimant does not receive any response from the
Respondent within the said Notice Period, the Claimant shall be
entitled to nominate any one person from amongst the proposed three
names as the sole arbitrator and such arbitrator shall be deemed to be
appointed by both the Parties. In the event, the Respondent conveys its
objection as per (ii) above then the sole arbitrator will be appointed by
a Court having jurisdiction. The arbitration shall be conducted under
the provisions of the Arbitration and Conciliation Act, 1996 together
with its amendments, any statutory modifications or re-enactment
thereof for the time being in force. The arbitration proceeding shall be
conducted in English language. The award of the arbitrator shall be
final and binding on all parties concerned. The cost of arbitration shall
be borne by the Obligor/s."
8. It is evident that where there exists an arbitration clause, and in event
if any dispute arises between the parties, then there should be no impediment
in appointing an independent Sole Arbitrator for adjudicating the same. In
this regard, reference can be made to the following judgments of the
Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd.,2
TRF Limited v. Energo Engineering Projects Ltd.,3 Bharat Broadband
Network Limited v. United Telecoms Limited.,4 and Interplay between
Arbitration Agreements under the Arbitration & Conciliation Act, 1996 &
the Indian Stamp Act, 1899, In re 5.
9. In view of the fact that disputes have arisen, and there is an arbitration
clause in the appointment letter, this Court is inclined to appoint an
Arbitrator to adjudicate upon the disputes.
(2020) 20 SCC 760
(2017) 8 SCC 377
2019 SCC OnLine SC 547
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Signing Date:04.04.2025 By:PURUSHAINDRA
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KUMAR KAURAV
10. Accordingly, Ms.Nishtha Jain, (Mobile No: +91-9599290860 and
email ID [email protected]) is appointed as the sole Arbitrator.
11. The arbitration would take place under the aegis of the Delhi
International Arbitration Centre (DIAC) and would abide by its rules and
regulations. The learned Arbitrator shall be entitled to fees as per the
Schedule of Fees maintained by the DIAC.
12. The learned arbitrator is also requested to file the requisite disclosure
under Section 12 (2) of the 1996 Act within a week of entering on reference.
13. The registry is directed to send a receipt of this order to the learned
arbitrator through all permissible modes, including through e-mail.
14. All rights and contentions of the parties in relation to the
claims/counter-claims or to file an appropriate application for deletion of
respondent No.2 are kept open, to be decided by the learned Arbitrator on
their merits, in accordance with law. Needless to state, the Court has not
expressed any view/opinion of the merits of the case.
15. The petition stands disposed of in the aforesaid terms.
PURUSHAINDRA KUMAR KAURAV, J
MARCH 26, 2025/DPA/SP
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2023 SCC OnLine SC 1666.
Digitally Signed By:PRIYA Digitally Signed
Signing Date:04.04.2025 By:PURUSHAINDRA
15:19:46
KUMAR KAURAV
