Full Judgment Text
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 26.11.2024
+ ARB.P. 1310/2024
MONEYWISE FINANCIAL SERVICES PVT LTD.....Petitioner
Through: Ms. Mehvish Khann, Mr. Aman
Choudhary and Ms. Arunima Sinh
Jadaun, Advs.
versus
M/S PRERNA ELECTRO VISION THROUGH ITS PROPRIETOR
SH. SANJAY KHATTAR AND ANR. .....Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
SACHIN DATTA, J. ( ORAL )
1. The present petition has been filed under section 11 of the Arbitration
and Conciliation Act, 1996 (hereinafter referred as ‘the A&C Act’) seeking
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
Master Loan Agreement dated 09.05.2018 executed between the petitioner
and the respondents, in terms of which the respondent no.1 is a borrower,
whereas the proprietor of respondent no.1 and respondent no.2 are
guarantors.
3. As per the said agreement, the petitioner disbursed a loan of Rs.
15,00,000/- (Rupees Fifteen Lakhs only) to the respondents. The loan
amount was payable into 36 equal instalments of Rs . 55,745/- (Rupees Fifty -
Signature Not Verified
ARB.P. 1310/2024 Page 1 of 4
Digitally Signed By:ROHIT
KUMAR PATEL
Signing Date:04.12.2024
11:36:00
Five Thousand Seven Hundred and Forty-Five only).
4. Dispute/s have arisen between the parties on account of alleged
default on the part of the respondents in paying the requisite instalments.
The respondents failed to make the payment despite being granted
opportunities to clear the outstanding dues.
5. The arbitration clause in the Agreement between the parties, is in the
following terms: -
“10.1 Arbitration: Any disputes, differences, controversies and questions
directly or indirectly arising at any time hereafter between the Parties or
their respective representatives or assigns, arising out of or in connection
with this Agreement (or the subject matter of this Agreement), including,
without limitation, any question regarding it existence, validity,
interpretation, construction, performance, enforcement, rights and
liabilities of the Parties, or termination (“Dispute”), shall be referred to a
sole arbitrator duly appointed by the Lender . The language of the
arbitration shall be English. The seat of the arbitration shall be at New
Delhi and the language of proceedings shall be English. The award
rendered shall be in writing and shall get out the reasons for the
arbitrator’s decision. The costs and expenses of the arbitration shall be
borne equally by each Party with, each party paying for its own fees and
costs including attorney fees, except as may be determined by the
arbitration tribunal. Any award by the arbitration tribunal shall be final
and binding.”
6. Disputes having arisen between the parties, a loan recall/termination
notice dated 26.08.2019 was issued by the petitioner followed by a notice
for invoking arbitration on 19.07.2024.
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
27.08.2024. The petitioner has taken the requisite steps to serve the
respondents at its known addresses. It has been brought out that the
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ARB.P. 1310/2024 Page 2 of 4
Digitally Signed By:ROHIT
KUMAR PATEL
Signing Date:04.12.2024
11:36:00
respondents have been served through courier and speed post, however, the
notice/s sent to the address/es via speed post were returned with the
notations, “ Item Returned, Addressee Left without instructions .” Similarly,
the communication/s sent to the address/es via courier were returned with
the notations “Returned to Shipper.” The respondents are stated to have
been also served via email at sanjaykhattar.electrovision@gmail.com. The
relevant tracking reports have been placed on record along with the affidavit
of service dated 22.11.2024, filed on behalf of the petitioner.
9. 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 respondents and has thereby
discharged its onus to effect service on the respondents.
10. In the circumstances, the present petition is taken up for hearing and
disposal, despite no appearance on behalf of the respondents.
11. Since the existence of the arbitration clause is evident from a perusal
of the Master Loan Agreement, there is no impediment to constituting an
arbitral tribunal for adjudicating the disputes between the parties, as
mandated in terms of the judgments of the Supreme Court in SBI General
Insurance Co. Ltd. v. Krish Spinning , 2024 INSC 532 and Interplay
between Arbitration Agreements under the Arbitration & Conciliation Act,
1996 & the Indian Stamp Act, 1899, In re , 2023 SCC OnLine SC 1666.
12. Further, 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 and Bharat
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ARB.P. 1310/2024 Page 3 of 4
Digitally Signed By:ROHIT
KUMAR PATEL
Signing Date:04.12.2024
11:36:00
Broadband Network Limited v. United Telecoms Limited , 2019 SCC
OnLine SC 547, it is incumbent on this Court to appoint an independent sole
arbitrator to adjudicate the disputes between the parties.
13. Accordingly, Ms. Neeru Vaid, Advocate (Mobile No. +91
9582619834) is appointed as the Sole Arbitrator to adjudicate the disputes
between the parties.
14. The respondents 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.
15. 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.
16. At request of the petitioner, the arbitration shall take place under the
aegis of and under the rules of the Delhi International Arbitration Centre
(DIAC).
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
gm/sl
NOVEMBER 26, 2024/
Signature Not Verified
ARB.P. 1310/2024 Page 4 of 4
Digitally Signed By:ROHIT
KUMAR PATEL
Signing Date:04.12.2024
11:36:00