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HIGH COURT OF DELHI
Date of Decision: 13.11.2024
AAKASH EDUCATIONAL SERVICES LIMITED .....Petitioner
Through: Ms. Manasi.C., Mr. Pranav Proothi, Mr. Aditya Singh, Advs.
Through: None
JUDGMENT
1. Allowed, subject to all just exceptions. IA No.30397/2024 (Exemption)
2. Application stands disposed of.
3. The present petition filed under section 11(5) of the Arbitration and Conciliation Act, 1996 (hereinafter referred as ‘A&C Act’) seeks appointment of a sole arbitrator to adjudicate the disputes between the parties.
4. The disputes between the parties have arisen in the context of a Service Rules Manual for the Employees as Faculty Members (hereinafter referred as ‘the Service Rules’) dated 11.08.2013, in terms of which the respondent was appointed by the petitioner as a Senior Associate Professor Grade-I in Chemistry Department.
5. The arbitration clause in the Service Rules between the parties, is in the following terms: -
6. Dispute/s have arisen between the parties on account of resignation tendered by the respondent via email dated 10.11.2022. It is submitted by the petitioner that since resignation tendered by the respondent was without any prior intimation and in breach of the Service Rules, the resignation cannot be accepted. It is stated that via email dated 11.11.2022, the respondent communicated the aforesaid to the petitioner.
7. It is further submitted that since the respondent illegally and unlawfully retained the possession of a pen drive containing confidential data of the petitioner’s institute, the petitioner was constrained to file a police complaint with S.H.O at the Police Station, Janakpuri, Delhi and a petition under Section 9 of the A&C Act for interim relief before the District Judge, Commercial Courts, Central District, Tis Hazari Courts, Delhi. In the aforesaid proceedings the Court vide order dated 11.08.2023 restrained the respondent from using petitioner’s confidential data and held as under: “………….. In facts the respondent is restrained from illegally misusing the study material, question papers, answer sets, home assignment sets, academic planner, lecture plan, test planner and test papers and data base of the petitioner. As far as the last prayer seeking restraining the respondent from illegally contacting and threatening the petitioner’s students, their parents and petitioner’s staff/ faculty is concerned, the same is declined as this court is not in a position to monitor the day to day violation of this prayer in case the same is violated. The above interim order shall continue till the petitioner appoints an arbitrator and the arbitrator enters upon the reference. The arbitrator shall be nominated at the earliest but not later than one month from the date of this order. Nothing said here in above shall tantamount to have any expression of the merits of the case. The petition stands disposed of.”
8. Disputes having arisen between the parties, a desertion cum demand notice dated 13.02.2023 was issued by the petitioner followed by a notice for invoking arbitration on 27.03.2024. However, the respondent vide letter dated 01.05.2024 sought withdrawal of the aforesaid notice. The parties have failed to mutually appoint a sole arbitrator to adjudicate the dispute/s that have arisen between them.
9. 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.
10. In the present proceedings, notice was issued by the Court on 27.05.2024. However, none appears for the respondent.
11. An affidavit of service dated 30.07.2024 has been filed on behalf of the petitioner wherein it has been brought out that the respondent has been served through speed post. It is also stated that the respondent has been duly served via e-mail at ravikantkarwal@gmail.com and via whatsapp at +919599433055. The relevant tracking reports have also been placed on record along with the affidavit of service.
12. In the circumstances, the present petition is taken up for hearing and disposal, despite no appearance on behalf of the respondent.
13. Since the existence of the arbitration clause is evident from a perusal of the Service Rules, there is no impediment in appointing an independent sole arbitrator for adjudicating the disputes between the parties as prayed for, as mandated 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, Bharat Broadband Network Limited v. United Telecoms Limited., 2019 SCC OnLine SC 547, 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,
14. Accordingly, Ms. Sapna Chauhan, Advocate (Mob. No.: +91
9811264265) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties.
15. The respondent shall be at liberty to raise preliminary objection/s as regards arbitrability/jurisdiction, if any, which shall be decided by the arbitrator, in accordance with law.
16. 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.
17. The learned Sole Arbitrator shall be entitled to fee in accordance with the IVth
18. Parties shall share the arbitrator’s fee and arbitral cost, equally. All Schedule of the A&C Act; or as may otherwise be agreed to between the parties and the learned Sole Arbitrator. 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.
19. Needless to say, nothing in this order shall be construed as an expression of opinion of this court on the merits of the case.
20. The present petition stands disposed of in the above terms.
SACHIN DATTA, J NOVEMBER 13, 2024