Full Text
HIGH COURT OF DELHI
Date of Decision: 08th August, 2024
DD AUTO PVT LTD .....Petitioner
Through: Mr. Nikhil Kohli, Mr. Kushank Garg and Ms. Saumya Tiwari, Advocates
Through: None
JUDGMENT
Exemption allowed, subject to all just exceptions.
1. Petitioner is one of the co-claimants before the learned Sole Arbitrator.
2. Respondents in such arbitration proceedings are Pivotal Infrastructure Pvt. Ltd., Forging Pvt. Ltd. and DD Global Pvt. Ltd.
3. During the arbitral proceedings, M/s Forging Pvt. Ltd. was permitted to be transposed as co-claimant by virtue of order dated 24.04.2024 passed by learned Sole Arbitrator.
4. Pursuant to such transposition of M/s Forging Pvt. Ltd. as claimant NO. 4, the claimant no. 4 was permitted to file an affidavit adopting the pleadings and documents of other claimants, for the purpose of quantifying its claim. This was done as transposed claimant has agreed to the above.
5. Simultaneously, respondent no.1 Ms/ Pivotal Infrastructure Pvt. Ltd. CM(M) 3059/2024 2 (the sole respondent in the present petition) was also permitted to file response, if any, to the aforesaid affidavit on or before 15.05.2024.
6. The transposed claimant filed an affidavit and in view of the aforesaid opportunity granted by learned Sole Arbitrator, respondent no. 1 filed its response-affidavit.
7. Petitioner herein i.e. claimant no. 2 DD Auto Pvt. Ltd. raised an objection to the aforesaid response-affidavit titled as statement of defence contending that the said respondent had changed the defence from the one taken already in the earlier affidavit.
8. Learned Sole Arbitrator considered the aforesaid objection on 03.07.2024 and discarded the same while observing as under: -
CM(M) 3059/2024 3 rejoinder, to the affidavit (SOD) of the Respondent No.1.
7. The Claimant No.4 is permitted to do so.”
9. Said order has been challenged by invoking supervisory powers of this Court in terms of Article 227 of Constitution of India. According to learned counsel for claimant no. 2, there is apparent denial of due opportunity to him.
10. It is contended that despite the fact that even learned Sole Arbitrator was of the view that there were some additional facts which had been mentioned in the aforesaid response-affidavit, it not only permitted the same to be taken on record but also denied opportunity to claimant to file any additional pleading. It is contended that it would be difficult for him to meet new submissions made therein as well as the documents contained with the above said affidavit during the trial and, therefore, it is prayed that above said direction may be set aside.
11. Learned counsel for petitioner has, however, very fairly, admitted that the learned Sole Arbitrator has also permitted the claimant to file additional affidavit by way of examination-in-chief relating to the above said particulars.
12. However, contending that these may be beyond the pleadings, apprehension and reservation have been expressed in this regard.
13. I have carefully gone through the entire record and given my thoughtful consideration to the above said contentions.
14. It is manifest that as such there is no denial of opportunity, particularly, in view of the fact that the learned Sole Arbitrator has rather given a very categoric and specific permission to the claimants to file additional affidavit by way of examination-in-chief relating to the aforesaid particulars which, allegedly, surfaced for the first time in the above said response-affidavit filed CM(M) 3059/2024 4 by respondent no. 1.
15. In such a situation, the contention that there is any kind of denial of opportunity needs to be rejected outrightly.
16. On the contrary, learned Sole Arbitrator has gone beyond the realm of pleadings by even granting the petitioner herein to lead evidence about the above additional particulars.
17. Viewed thus, it cannot be said to be a case of unequal treatment and, therefore, the order impugned herein does not run contrary to the spirit of Section 18 of Arbitration and Conciliation Act, 1996 either.
18. Moreover, this Court also cannot be oblivious of the fact that judicial inference in such type of matters has to be minimal and recourse to Article 227 of the Constitution of India has to be under exceptional circumstances when it is shown that such order is absolutely perverse.
19. Reference be made to IDFC First Bank Limited Vs. Hitachi MGRM Net Limited: 2023 SCC OnLine Del 4052 whereby Co-ordinate Bench of this Court has enumerated certain circumstances wherein such type of petition can be entertained. Though, in that case, the challenge was in context of dismissal of application filed under Section 16 of Arbitration and Conciliation Act but the observations are equally essential and applicable herein as well. Relevant portion of aforesaid judgment reads as under: -
CM(M) 3059/2024 5 706; Bhaven Construction v. Sardar Sarovar Narmada Nigam Ltd., (2022) 1 SCC 75: (2022) 1 SCC (Civ) 374; Punjab State Power Corpn. Ltd. v. EMTA Coal Ltd., (2020) 17 SCC 93: (2021) 4 SCC (Civ) 341; Virtual Perception OPC (P) Ltd. v. Panasonic India (P) Ltd., 2022 SCC OnLine Del 566 and Ambience Projects & Infrastructure (P) Ltd. v. Neeraj Bindal, 2021 SCC OnLine Del 4023] has laid down circumstances in which such petitions ought to be entertained. The relevant portion of the said judgment reads as under:
CM(M) 3059/2024 6
26. A perusal of the above would show that it is only under exceptional circumstances or when there is bad faith or perversity that writ petitions ought to be entertained.”
20. Keeping in mind the facts placed before me, I do not find it to be a fit case where this Court should exercise its supervisory powers as prescribed under Article 227 of the Constitution of India, particularly when there is no denial of due opportunity.
21. Petition is accordingly dismissed in limine.
22. Before parting, learned counsel for petitioner contended that he wishes to file additional affidavit in terms of the permission granted by the learned Sole Arbitrator and since he has to meet approximately 1200 pages with respect to the response-affidavit filed by respondent no.1, he would be seeking grant of reasonable time in this regard.
23. All, I can say is that he is at liberty to make appropriate request in this regard before the learned Sole Arbitrator.
MANOJ JAIN, J AUGUST 8, 2024