Full Text
Translation output
C
& 314
* IN THE IIICH COURT OF DELHI AT NEW DELHI
+ CM(M) 453/2013
AKHIL BHARGAVA & ORS Petitioners
Through: Mr. Rakesh Kurnar, Ad\.
& 314
* IN THE IIICH COURT OF DELHI AT NEW DELHI
+ CM(M) 453/2013
AKHIL BHARGAVA & ORS Petitioners
Through: Mr. Rakesh Kurnar, Ad\.
VERSUS
KARE PARTNERS GROUP INDIA
PRIVATE LIMITED Respondent
Through: Nemo
('M(M) 454/20 13
AK f-IlL BHARGA\/A & ORS Petitioners
Through: Mr. Rakesh Kumar, Adv.
PRIVATE LIMITED Respondent
Through: Nemo
('M(M) 454/20 13
AK f-IlL BHARGA\/A & ORS Petitioners
Through: Mr. Rakesh Kumar, Adv.
VERSUS
KARE PARTNERS GROUP INDIA
PR1 \'ATE LI M ITED Respondent
Through: Nenio
(ORAM:
IION'BLE MS. JUSTICE INDERMEET KAUR
29.04.2013
Petitioners are aggrieved by the impugned order dated 04.3.2013 vide which their review application seeking a review of the order dated 08. 1 .2013 passed on an application under Section 12(3) of the Arbitration and
Conciliation Act. 1996 (hereinafter referred to as the said Ad') had been disposed of.
('M('M) No.c.453-454/2013 Page 1 o/ 5
2013:DHC:7404
Record shows that the parties i.e. the petitioners and the respondent had entered into a share purchase agreement (SPA) pursuant to which the respondent had to acquire the 100 % shareholding of M/s Kamlesh Bhargava
Hospitals and Research Centre Pvt. Ltd.
Dispute arose between the parties and the matter was referred to the
Sole Arbitrator.
A petition under Section 9 of the said Act came to be filed by the respondent i.e. O.M.P. No.957/2012 which was pending before a Bench of
PR1 \'ATE LI M ITED Respondent
Through: Nenio
(ORAM:
IION'BLE MS. JUSTICE INDERMEET KAUR
29.04.2013
Petitioners are aggrieved by the impugned order dated 04.3.2013 vide which their review application seeking a review of the order dated 08. 1 .2013 passed on an application under Section 12(3) of the Arbitration and
Conciliation Act. 1996 (hereinafter referred to as the said Ad') had been disposed of.
('M('M) No.c.453-454/2013 Page 1 o/ 5
2013:DHC:7404
Record shows that the parties i.e. the petitioners and the respondent had entered into a share purchase agreement (SPA) pursuant to which the respondent had to acquire the 100 % shareholding of M/s Kamlesh Bhargava
Hospitals and Research Centre Pvt. Ltd.
Dispute arose between the parties and the matter was referred to the
Sole Arbitrator.
A petition under Section 9 of the said Act came to be filed by the respondent i.e. O.M.P. No.957/2012 which was pending before a Bench of
this Court. Notice was issued on the said petition.
Meanwhile the petitioner filed two applications i.e. an application under Section 16 of the said Act to challenge the jurisdiction of the
Arbitrator as also another application under Section 12(3) of the said Act.
The contention in the second application was that the Arbitrator being their
Meanwhile the petitioner filed two applications i.e. an application under Section 16 of the said Act to challenge the jurisdiction of the
Arbitrator as also another application under Section 12(3) of the said Act.
The contention in the second application was that the Arbitrator being their
"Escrow Agenf" to the agreeineiit was biased and it was a fit case for him to recuse himself.
Record shows that arguments were heard on both the applications.
On 08.01 .20 I 3 the Sole Arbitrator disposed of the application under d Section 12(3) of the said Act: the application was dismissed: finding returned was that there was no circumstances to justify the apprehension of the petitioner that the Arbitrator was not going to function either independently or impartially.
Review petition was filed seeking a review of the afurenoted order.
I The submission in the review petition being that the oral arguments propounded by the learned counsel for the petitioner had not been recorded in the order dated 08.01 .20 13 which made out a ground for review.
CM(M) No.s.453-454/2013 Pige 2 of.
This application was dismissed on 04.3.2013 both on the aspect of maintainability as also on merits by the impugned order. The Arbitrator was of the view that the arguments addressed before it had been recorded in the order dated 08.01.2013.
A preliminary question has been put to the leaned counsel for the petitioner as to how the present petition is maintainable under Article 227 of the Constitution of india: the provisions of Section 12 and 13 of the said Act contain a special procedure and the manner in which such a challenge when
Record shows that arguments were heard on both the applications.
On 08.01 .20 I 3 the Sole Arbitrator disposed of the application under d Section 12(3) of the said Act: the application was dismissed: finding returned was that there was no circumstances to justify the apprehension of the petitioner that the Arbitrator was not going to function either independently or impartially.
Review petition was filed seeking a review of the afurenoted order.
I The submission in the review petition being that the oral arguments propounded by the learned counsel for the petitioner had not been recorded in the order dated 08.01 .20 13 which made out a ground for review.
CM(M) No.s.453-454/2013 Pige 2 of.
This application was dismissed on 04.3.2013 both on the aspect of maintainability as also on merits by the impugned order. The Arbitrator was of the view that the arguments addressed before it had been recorded in the order dated 08.01.2013.
A preliminary question has been put to the leaned counsel for the petitioner as to how the present petition is maintainable under Article 227 of the Constitution of india: the provisions of Section 12 and 13 of the said Act contain a special procedure and the manner in which such a challenge when
dealt with has then to proceed. The answer of the learned counsel for the petitioner is that since all Tribunals are under the superintendence of the
High Court the Arbitral Tribunal also being one such body is subject to the superintendence of this Court. On merits, it has been submitted that the impugned order has wrongly recorded that the arguments addressed before
IV the Arbitrator had been recorded while disposing the application under
Section 12(3) of the said Act on 08.01.2013. This is an illegality and calls for a review of the said order.
The submissions propounded by the learned counsel for the
40 petitioners have no force. The said Act has been amended to consolidate and amend the earlier law relating to domestic, international and commercial arbitration and for the enforcement of Arbitral Awards. Admittedly there is no provision for review in the said Act. This Act is in fact a complete Code in itself.
* Section 12 under which the application had been filed and purstant to which the order dated 08.0 1 .2013 was passed lays down the grounds for challenge on the appointment of the Arbitrator. Section 13 has culled out
C'M(M) T'/os'.453-454/20I3 Page 3 ;f 5 the challenge procedure.
A reading of the aforenoted provisions show that the appointirient of the Arbitrator may be challenged where there is a justifiable doubt with either party about his independence or impartiality. This was the provision adopted by the petitioner when he has filed his application under Section
12(3) of the said Act. He has challenged the independence and impartially of the Sole Arbitrator. The challenge procedure under Section 13 states that where this challenge procedure is unsuccessful the Arbitral Tribunal shall continue with the arbitral proceedings and pronounce the Award-,where the
Arbitral Award is made under Section 13(4) the paily challenging this appointment may make an application for setting aside the Arbitral Award under Section 34 of the said Act.
Thus the procedure is enunciated under Section 12 and 13 itself. The
Ir petitioner was aggrieved by the finding returned on 08.0 1.2013 vide which his application was dismissed. The arbitral proceedings were nevertheless to continue and it was only after the pronouncement of the final Award that a challenge could have been laid by the petitioner under Section 34 of the said
Act. The petitioner, however, chose not to follow this procedure. He instead filed an application seeking review of the order dated 08.01.2013.
The averments made in this application have been perused . Adniittedly, 110 written arguments have been filed. Submission of the petitioner that his arguments had not been considered had been declined. The order dated
1 08.01 .2013 passed by the learned Arbitrator shows that the submissions made by the petitioner had been countered by the non-applicant: the case law had also been discussed: final order was passed both on factual as also
CM(tvl) Nos.453-454/2013 k, on the legal aspect.
Grounds for review are even otherwise limited. Unless and until there is an error apparent on the face of the record or a glaring mistake which is evident from the record of the case itself, no ground for review is made out. This was not one such case.
The impugned order in this background had rightly dismissed the review petition.
Both on merits as also on maintainability, the petitioner has made out no case. Petition is dismissed with costs quantified at Rs. I/O.00Oi.
INDERMEET KAUR, J
APRIL 29,2013
Nandan
CM(M) No,s.453-454/2013 Page 5oj5 p.
High Court the Arbitral Tribunal also being one such body is subject to the superintendence of this Court. On merits, it has been submitted that the impugned order has wrongly recorded that the arguments addressed before
IV the Arbitrator had been recorded while disposing the application under
Section 12(3) of the said Act on 08.01.2013. This is an illegality and calls for a review of the said order.
The submissions propounded by the learned counsel for the
40 petitioners have no force. The said Act has been amended to consolidate and amend the earlier law relating to domestic, international and commercial arbitration and for the enforcement of Arbitral Awards. Admittedly there is no provision for review in the said Act. This Act is in fact a complete Code in itself.
* Section 12 under which the application had been filed and purstant to which the order dated 08.0 1 .2013 was passed lays down the grounds for challenge on the appointment of the Arbitrator. Section 13 has culled out
C'M(M) T'/os'.453-454/20I3 Page 3 ;f 5 the challenge procedure.
A reading of the aforenoted provisions show that the appointirient of the Arbitrator may be challenged where there is a justifiable doubt with either party about his independence or impartiality. This was the provision adopted by the petitioner when he has filed his application under Section
12(3) of the said Act. He has challenged the independence and impartially of the Sole Arbitrator. The challenge procedure under Section 13 states that where this challenge procedure is unsuccessful the Arbitral Tribunal shall continue with the arbitral proceedings and pronounce the Award-,where the
Arbitral Award is made under Section 13(4) the paily challenging this appointment may make an application for setting aside the Arbitral Award under Section 34 of the said Act.
Thus the procedure is enunciated under Section 12 and 13 itself. The
Ir petitioner was aggrieved by the finding returned on 08.0 1.2013 vide which his application was dismissed. The arbitral proceedings were nevertheless to continue and it was only after the pronouncement of the final Award that a challenge could have been laid by the petitioner under Section 34 of the said
Act. The petitioner, however, chose not to follow this procedure. He instead filed an application seeking review of the order dated 08.01.2013.
The averments made in this application have been perused . Adniittedly, 110 written arguments have been filed. Submission of the petitioner that his arguments had not been considered had been declined. The order dated
1 08.01 .2013 passed by the learned Arbitrator shows that the submissions made by the petitioner had been countered by the non-applicant: the case law had also been discussed: final order was passed both on factual as also
CM(tvl) Nos.453-454/2013 k, on the legal aspect.
Grounds for review are even otherwise limited. Unless and until there is an error apparent on the face of the record or a glaring mistake which is evident from the record of the case itself, no ground for review is made out. This was not one such case.
The impugned order in this background had rightly dismissed the review petition.
Both on merits as also on maintainability, the petitioner has made out no case. Petition is dismissed with costs quantified at Rs. I/O.00Oi.
INDERMEET KAUR, J
APRIL 29,2013
Nandan
CM(M) No,s.453-454/2013 Page 5oj5 p.
JUDGMENT