Reliance Commercial Finance Ltd v. Dr. Ashish Jain and Ors.

1. The petitioner is a financier. Respondent 3 is a builder. Respondents 1 and 2, who are husband and wife, were allottees in a project of Respondent 3.

2. A tripartite agreement, to which the petitioner and the respondents are parties and signatories, was executed on 14 March

2015. The agreement contains the following clause, which envisages resolution of disputes by arbitration:

English language and the place of Arbitration will be in Delhi. Each party has to bear cost of representing its case before the Arbitrator. Costs and charges of Arbitrator to be shared equally unless/otherwise provided for in the Award.”

3. Ms. Sunanda Tulsyan, learned Counsel for the petitioner submits that the petitioner made certain payments to Respondent 3 on behalf of Respondents 1 and 2. Thereafter, Respondents 1 and 2 are seeking to exit the project. In that event, she submits that Clause 13 of the tripartite agreement entitles the petitioner to receive the payment that has been made, back from Respondent 3.

4. As this gave rise to disputes between the petitioner and the respondents, the petitioner addressed a notice under Section 21 to the respondents on 20 April 2022, seeking reference of the disputes to arbitration. No reply having been received from any of the respondents, the petitioner has approached this court by means of the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996[1], seeking intervention of the Court to appoint an Arbitrator to arbitrate on the disputes.

5. The petitioner submits that the claim of the petitioner against the respondents is in the region of approximately ₹ 2 crores.

6. Mr. Tripathi, who appears on behalf of Respondent 1 and 2, submits that, in connection with the project, his clients have also moved the Consumer Court against Respondent 3. He further submits that the claims of the petitioner are barred by time. “the 1996 Act” hereinafter

7. The lis which form subject matter of dispute before the Consumer Forum is completely independent and cannot affect the right of the petitioner to invoke Clause 27 of the Tripartite Agreement.

8. Insofar as the plea of limitation is concerned, the Supreme Court has, in its recent decision in SBI General Insurance Co Ltd v. Krish Spinning[2], specifically held that the Section 11(6) Court should ideally restrict its consideration to the existence or otherwise of an arbitration agreement between the parties, leaving other issues to be decided by the Arbitral Tribunal, in the interests of preserving arbitral autonomy.

9. In view thereof, the plea of limitation, as urged by the Respondent 1 and 2 would also ideally have to be decided by the Arbitral Tribunal.

10. Mr. Ujjwal Malhotra, learned counsel for Respondent 3, does not object to reference of the disputes to arbitration but submits that all rights and contentions of his client may be kept alive to be urged in the arbitral proceedings.

11. In view thereof, the dispute between the parties is referred to arbitration by Mr. Shlok Chandra, Advocate (Tel: 9999670588).

12. The arbitration would proceed under the aegis of the Delhi International Arbitration Centre (DIAC) and the learned Arbitrator 2024 SCC OnLine SC 1754 would be entitled to fees as per the Schedule of Fees maintained by the DIAC.