MRS CHANDRAVATI SHARMA v. UMESH CHAND SHARMA & ANR

1. Plaintiffis the mother ofthe defendant nos.[2] and 3. Disputes CS(OS) Nos.2231/2015 &2232/2015 page 1of[4] 2015:DHC:11890 have arisen between the plaintiff/mother and defendant nos.[2] and 3under the registered gift deed dated 13.4.2011 as the plaintiff/mother claims that she has been defrauded and defendant nos.[2] and 3have got executed the gift deed. Gift deed pertains to the property measuring 3 bighas 1biswa in khasra no.204/2 and 199 of village Asola, Tehsil Hauz Khas, New Delhi. The subject gift deed dated 13.4.2011 admittedly contains an arbitration clause. This arbitration clause is Clause (h) and which reads as under:- • "(h) AND FURTHER that in case of any dispute relating to the above the matter shall be referred to the sole Arbitrator to be appointed by. any one ofthe Donee's." 2, No doubt, under the arbitration clause only either of the defendant nos.[2] and 3, being the donees can appoint an arbitrator, yet the fact ofthe matter remains that there is an arbitration clause. Once there ie an arbitration clause, the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') provides an exhaustive mechanism for dealing with all the aspects to be dealt with i.e whether qua the arbitration to be conducted or the appointment of arbitrator or removal of arbitrator or substitution of arbitrator orpassing ofAwards etcetc.

3 The essence ofcause ofaction in the present matter is the CS{OS) Nos.2231/2015 &2232/2015 Page 2of[4] illegality of appointment of the defendant no.l as the arbitrator by the defendant no.2/youngest son and it is stated that actually another arbitrator namely Ms. Kiran Singh, Advocate has been rightly earlier appointed by defendantno.3 (the eldest son).

4. In view ofthe admitted clause, Ihave pointed out to the learned senior counsel for the plaintiffthat in case there are disputes as to validity of the appointment ofthe defendant no.l, and ifthe defendant no.l wants such appointment to be terminated, then, plaintiff or the defendant no.3 would have adequate remedies imder the Act as per Sections 13 to 15 and more particularly Sections 14 and 15 of the Act read with Sections 11(5) and 11(6) ofthe Act because conjoint reading ofthese Sections entitles aperson who pleads acause ofaction with respect to an arbitrator not having de facto or de jure rights for not continuing as an arbitrator, and that the arbitrator should be one who should hence be appointed by a Court under Section 11(6) ofthe Act or be the one in accordance with the arbitration clause.

5 In view ofthe aforesaid legal position, learned senior counsel for the plaintiffon instructions states that plaintiffwill exercise her remedies under the Act and suit is prayed to be withdrawn and directions are sought CS(OS) Nos.2231/2015 &2232/2015 page 3of[4] u for refund ofthe Court fee because suit is withdrawn at the initial stage itself without going into the merits of the matter. Spirit of Section 16A of the Court Fees Act, 1870 as applicable to Delhi has also been invoked for refund of the Court fee. ^ In view ofthe above, the suit as prayed for is allowed to be withdrawn with liberty to the plaintiff or defendant no.3 to exercise appropriate rights under the Act. Registry to issue acertificate for refund of the Court fee to the plaintiff. CSfOS) Nos.2232/2015 and I.A. No.l5251/2015 (stay) In view ofthe order passed in CS(OS) No.2231/2015, this suit is also allowed to be withdra:wn with liberty to the plaintiffto exercise such remedies as available in law under the Act. Registry to issue acertificate for refund ofthe Court fee to the plaintiff. JULY 30, 2015 Ne VALMIKi J. MEHTA, J CS(OS) Nos.2231/2015 &2232/2015 page 4of[4]