The Single Bench of the Delhi High Court in the case of Mr. Kush Raj Bhatia vs M/S DLF Power & Services Ltd. consisting of Justice Neena Bansal Krishna expounds that the High Court cannot review an order passed under section 11 of the Arbitration and Conciliation Act, which deals with the provision of appointment of arbitrators in an arbitration settlement.
Facts
The petitioner filed a review petition under O47R1 and Section 114 CPC. By this order/judgment, the Section 11 Arbitration & Conciliation Act, 1996 (“Act, 1996”) petition was dismissed because this Court lacked geographical jurisdiction to hear it.
Respondent filed an eviction petition against Petitioner's mother ("Original Tenant") in New Delhi, which sought Original Tenant's eviction. Eviction summonses were issued. The Original Tenant then asked to defend himself. After the Court granted leave to defend, the Original Tenant filed a written statement. Both parties presented evidence. In 2021, the Original Tenant died. The Original Tenant's daughter was impleaded as the lawful heir. The newly impleaded legal heir then sought leave to defend u/s 14(1)(e) of the DRC, which was denied by the ARC.
Contentions Made
Petitioner: It was contended that this Court didn't evaluate Black's Dictionary's definition of Location. It was also contended that the petitioner's arguments were allegedly ignored.
Respondent: It was contended that the power of review has not been provided for under the Act, 1996, and thus, the present application was on the face of it, not maintainable. It was also contended that in a similar case, the parties agreed to arbitration in Delhi, although that was a concession and not on the merits. Now, they won't submit to Delhi's jurisdiction due to a clause in the agreement.
Observations of the Court
Relying on a plethora of cases, the Bench noted that the petitioner wanted a review of an order dismissing a Section 11 application on the grounds that this court lacks territorial jurisdiction. Since the Section 11 Order is in the execution of legislative authorities, any review must be within the Statute. Since the 1996 Act contains no review provision, this court lacked jurisdiction to examine the Order. Moreover, the arguments raised were in the realm of Appeal since the Court's conclusions were questioned, which could not be filed under "error apparent on the face of the record."
Even on merits, it was contended that once the location of arbitration was decided as New Delhi, the Chandigarh/Gurgaon exclusive jurisdiction clause would be non-est and the Delhi Courts would be bestowed with jurisdiction under the Agreement between the parties. The assailed Order's conclusion contradicted various Co-ordinate Bench judgments interpreting similar Clauses. Thus, the impugned Order needed to be reviewed to hold that this Court has the jurisdiction.
Relying on M/s Ravi Ranjan Developers Pvt. Ltd. v. Aditya Kumar Chatterjee, the Supreme Court referred to the definition of "Court" in Section 2(1)(e) of the Act and held that Section 11(6) of the Act, 1996 could never have intended that arbitration proceedings could be initiated in any Court in India, regardless of whether the respondent resided or carried on business within the High Court's jurisdiction and regardless of whether any part of the cause of action arose within that Court's jurisdiction. Since no cause of action existed within Calcutta High Court's jurisdiction, the court could not have entertained the petition u/s 11 of the Act, 1996 to appoint an arbitrator.
It opined that when a request to appoint an arbitrator is denied, the same relief cannot be obtained by filing a review petition. This petition is for the second innings, which is impermissible and unwarranted.
Judgment
The Bench concluded that the submissions made on behalf of the petitioner were in fact, in the domain of challenging the Order on merits that were beyond the scope of review. The review petition was accordingly dismissed.
Case: Mr. Kush Raj Bhatia vs M/S DLF Power & Services Ltd.
Citation: ARB.P. 869/2022
Bench: Justice Neena Bansal Krishna
Decided on: 6th December 2022
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