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HIGH COURT OF DELHI
ARB.P. 1338/2023
AMBUJ HOTEL AND REAL ESTATE PVT LTD ....Petitioner
Through: Mr. S.S. Sisodia, Mr. Saurav Kr. Singh, Mr. Moksh Kataria and Ms. Muskan, Advs.
Through: Mr. Mukul Singh, CGSC
Ms. Rashmi Malhotra, Adv. for R-2
JUDGMENT
30.07.2024
1. This is a petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (“1996 Act”) seeking reference of the dispute between the petitioner and the respondent to arbitration.
2. The dispute pertains to catering services provided by the petitioner to Train No. 12723-12724 (Telangana Express) which runs between Hyderabad and New Delhi.
3. The basic grievance of the petitioner appears to be that, after the COVID-19 pandemic, there was a unilateral change in the time of the Telangana Express, which resulted in the petitioner not being able to serve the number of meals which it was earlier serving and consequently suffering loss of revenue.
4. Paras 13 and 14 of the present petition encapsulate this grievance and read thus:
5. Respondent 2, in its reply, raised an issue of territorial jurisdiction. It was sought to be contended that there were two agreements which have to be taken into consideration, one being a Master License Agreement (MLA) dated 23 August 2014 and the second a Tripartite Agreement (TPA) dated 22 August 2017.
6. The MLA has been executed between the petitioner and the South Central Railways whereas the TPA has been executed among the South Central Railways, the petitioner and Indian Railways Catering and Tourism Corporation (IRCTC). The respondent, in its reply sought to contend that the present dispute relates to the MLA, in which there is a clause conferring exclusive jurisdiction on courts in Andhra Pradesh.
7. Though the MLA and the TPA both have clauses envisaging resolution of dispute by arbitration, the TPA does not contain any exclusive jurisdiction clause. The respondent’s contention is that, as the dispute pertained to the MLA, this Court would not have jurisdiction in the matter.
8. I have heard Mr. Sisodia, learned Counsel for the petitioner, Mr. Mukul Singh, learned CGSC for the respondent and Ms. Rashmi Malhotra, learned Counsel for Respondent 2.
9. Mr. Sisodia has taken me through the covenants of the TPA. He submits that the dispute in this case is fundamentally tripartite, among the petitioner, the South Central Railway and the IRCTC. The TPA was specifically executed with respect to Train No. 12723-12724 (the Telangana Express), with which alone the dispute is concerned.
10. The dispute that the petitioner seeks to raise, he submits, falls within the four corners of the TPA.
11. Mr. Sisodia has also submitted that there are at least four earlier orders passed by this Court in which similar disputes, with respect to different trains, have been referred to arbitration of Hon’ble Mr. Justice Dinesh Kumar Singh, a retired Judge of the High Court of Patna, and that the learned arbitrator has already entered on the reference on the said cases. He submits that, even in those cases, this Court had taken into consideration the covenants of the MLA and the TPA.
12. Though it is a fact that there four earlier orders as Mr. Sisodia correctly points out, a reading of the said orders did not indicate that this Court had, while referring dispute to arbitration, considered the contention of the respondent that the dispute pertained to the MLA and not the TPA. As such, I have heard Mr. Sisodia even on this aspect.
13. Insofar as the jurisdiction of the Court under Section 11(6) is concerned, the Supreme Court, in its recent decision in SBI General Insurance Co Ltd v Krish Spinning[1], has advocated circumspection on the part of the Court, which should restrict its examination to the aspect of whether an arbitration agreement exists or does not exist between the parties. The Supreme Court has also held, in no uncertain terms, that all other issues ideally should be left for the decision of the learned Arbitral Tribunal, applying the kompetenz-kompetenz principle.
14. It cannot be said, from the material on record, and after hearing learned counsel, that the present dispute falls within the scope of the MLA and is not relatable to the TPA. One of the factors that may be 2024 SCC Online SC 1754 relevant in this consideration is the fact that the TPA is specifically with respect to the Telangana Express with which the dispute is concerned whereas the MLA is not train specific.
15. In any event, this is a matter which, in the facts of the present case, ought in my opinion to be relegated for the decision by the learned Arbitral Tribunal.
16. Similar disputes are already pending before Hon’ble Mr. Justice Dinesh Kumar Singh (Retd.).
17. As such, following the earlier orders passed in the said cases, this petition is also disposed of by referring the dispute between the parties to Hon’ble Mr. Justice Dinesh Kumar Singh (Retd) (Mob: 9431015011).
18. It is open to the learned arbitrator to consolidate this proceeding with the proceeding already pending before him.
19. As in the earlier case, the present proceeding would also be conducted under the aegis of the Delhi International Arbitration Centre (DIAC) and would abide by its rules and regulations.
20. The learned arbitrator would be entitled to fees as per the schedule of fees maintained by the DIAC. The learned Arbitrator is requested to submit the requisite disclosure under Section 12(2) of the 1996 Act within a week of entering on the reference.
21. All issues of facts and law, including the issue as to whether the present dispute falls within the four corners of the MLA or the TPA are left open for arguments and consideration by the learned Arbitrator.
22. This Court does not express any final view thereon.
23. The petition stands disposed of in the aforesaid terms with no order as to costs.
C. HARI SHANKAR, J