Anarock Property Consultants Pvt. Ltd. v. Guru Raghavendra Infra Developers Pvt. Ltd.

1. The instant petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter "The Act, 1996") has been filed on behalf of petitioner seeking the appointment of arbitrator.

2. Learned counsel for the petitioner submitted that the petitioner is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at 1002, 10th Floor, B Wing, ONE BKC. G Block, Bandra Kurla Complex, and was formerly known as Janes Lang LaSalle Residential Pvt Ltd.

3. Learned counsel for the petitioner submitted that the Arbitration Clause contained in Clause 12 of the Agreement states that differences between the parties shall be adjudicated in Arbitration, in accordance with the provisions of the Act, 1996.

4. Learned counsel for the petitioner submitted that the parties in dispute entered into the Agreement on 22nd February 2016 whereby the petitioner was appointed by the respondent on an exclusive basis to provide marketing services to market and promote the project names ‘Guru Raghavendra’s Royal Palms’. It is further submitted that under the said Agreement, the petitioner was required to perform functions and duties as per terms stipulated under Clause 5 of the Agreement on account of which 4% of the fee of the sale price of each unit sold was payable by the respondent to the petitioner.

5. Learned counsel for the petitioner submitted that the petitioner diligently carried out its contractual obligations and as per Clause 7 of the Agreement, the percentage owed to the petitioner became due and payable as commission on the successful booking of the units.

6. Learned counsel for the petitioner submitted that an invoice of INR 36,06,080 (+GST) was raised by the petitioner which was duly accepted by the respondent. However, the respondent has failed to make the payment towards the aforesaid invoices either in part or in full, despite the fulfillment of Contractual obligations by the petitioner. It is further submitted that despite numerous follow-ups and attempts made by the petitioner to reconcile the issue but to no avail.

7. Learned counsel for the petitioner submitted that the petitioner being aggrieved by the actions of the respondent decided to refer the dispute to the Arbitration in accordance with the provisions contained in Clause 12 of the Agreement. It is further submitted that notice on behalf of the petitioner through the petitioner’s counsel was served to the respondent on 30th March 2022 asking the respondent to provide consent to the Learned Arbitrator proposed by the petitioner within 15 days from the receipt of the said notice.

8. Learned counsel for the petitioner submitted that despite the service of notice, the respondent has failed to comply with the terms of Clause 12 and provide consent to the proposed Learned Arbitrator due to which the Arbitral Proceedings have not been commenced. It is further submitted that the respondent is in grave violation of Section 11(6)(a) of the Act by not replying to the notice to the appointment of the Arbitrator.

9. Learned counsel for the petitioner submitted that on the basis of bona fide belief that the respondent would fulfil its contractual obligations and commence the Arbitral Proceedings, the petitioner did not approach this Court on an earlier date. However, the petitioner has been constrained to approach this Court due to continuous failure to either appoint or reply to the said notice. It is further submitted that the petitioner has no other efficacious or alternate remedy but to approach this Court for the appointment of the Arbitrator under Section 11 of the Act, 1996.

10. Learned counsel on behalf of the respondent vehemently opposed the averments made by learned counsel for the petitioner, however it is duly accepted that dispute in question are arbitrable in nature. It is also requested by the learned counsel for the respondent that there is no objection if the instant dispute is referred by the Court to a sole arbitrator.

11. Heard learned counsel for the parties.

12. As agreed on behalf of the parties, it is evident that the parties intend the Court to refer the disputes to arbitration, by appointing a sole arbitrator. In view of the request made by the parties, the said disputes and differences arising between the parties are referred to arbitration, by appointing an arbitral tribunal. Hence, the following Order: ORDER

(i) Mr. Rajeev Saxena, Advocate is appointed as a sole arbitrator under the aegis of DIAC to adjudicate the disputes between the parties which have arisen under the Agreement dated 22nd February 2016;

(ii) The learned sole arbitrator, before entering the arbitration reference, shall ensure the compliance of Section 12(1) of the Arbitration and Conciliation Act, 1996;

(iii) The learned sole arbitrator shall be paid fees as prescribed under the Delhi International Arbitration Centre (DIAC) (Administrative Cost and Arbitrators Fees) Rules, 2018 as amended vide notification dated 15th November, 2022;