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HIGH COURT OF DELHI
Date of Order: 22nd February, 2023
FUN CHOICE & ORS. ..... Petitioners
Through: Mr. Jayant K. Mehta, Sr. Advocate with Ms. Charanya Lakshmikumaran, Mr. Yogendra Aldak, Ms. Bhavya Shukla and Mr. Pranav Mundra, Advocates
Through: Counsel for respondents (Appearance not given)
CHANDRA DHARI SINGH, J (Oral)
JUDGMENT
1. The instant application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of respondent no. 1 seeking the following reliefs:-
(including but not limited to the entire Arbitration proceedings) be declared non-est, null and void and having no binding value; and
2. Learned counsel appearing on behalf of applicant/respondent no. 1 submitted that the order dated 28th July, 2020 passed by this Court, whereby this Court was pleased to appoint Mr. N.P. Kaushik, Retd ADJ as sole arbitrator for adjudication of the disputes and differences between the parties, be recalled and set aside.
3. It is submitted that it is a settled position of law that a Court of law possesses an inherent power to recall and set aside its own order or judgment if it is found that the said order or judgment has been obtained by playing a fraud on the Court.
4. It is submitted that ‘Fun Choice’, renamed as ‘M/s JBK Industries’, ceased to exist as on 5th June, 2020, thus the petitioners act of representing themselves to be ‘Fun Choice’, a Partnership Firm of Mr. Prabhat Aggarwala and Mr. Anil Agarwalla, is nothing but a fraud on this Court. It is reiterated that even the affidavit filed in support of the petition describes the petitioner no.1 as ‘Fun Choice’ and Mr. Prabhat Aggarwala as a partner in ‘Fun Choice’.
5. It is submitted that the instant petition was heard by this Court on 28th July, 2020, on which date the learned counsel for the respondents orally submitted that he had no objection if a sole arbitrator is appointed by this Court as suggested by the learned counsel for the petitioners.
6. It is further submitted that the parties in the present case had already vide Clause 18.[6] of the MAPA dated 19th December, 2018 agreed upon a procedure for the appointment of a three-member Arbitral Tribunal. Thus, it was not open to the learned counsel for the respondent no.1 to give oral consent for arbitration before a sole arbitrator.
7. In view of the aforesaid, it is stated that the said order dated 28th July, 2020 appointing a sole arbitrator merits to be recalled and set aside by this Court.
8. Per contra, learned counsel for the non-applicant vehemently opposed the instant application and stated the instant application is nothing but an abuse of process of law and merits to be dismissed with costs.
9. Learned counsel for the non-applicant submitted that the instant application has been filed after a period of three years after the order was passed. Therefore, the application in the instant case is barred by limitation.
10. It is also stated that the proceedings before the learned sole arbitrator are still ongoing and the applicant, in an attempt to delay the arbitral proceedings, has mischievously filed this application.
11. It is thus submitted that the instant petition being devoid of merits deserves to be dismissed.
12. Heard learned counsels for the parties and perused the record.
13. The relevant portion of the order being under review and sought to be recalled by the applicant is reproduced hereunder:
14. As per paragraph 4 of the said Order, it is evident that learned counsel for the petitioner prayed before this Court that keeping in view the petitioner's eagerness to have the dispute arbitrated, this Court might appoint a sole arbitrator instead of a three-member arbitral tribunal, as stipulated under the contract, to adjudicate the disputes between the parties.
15. Furthermore, paragraph 5 of the Order clearly records that learned counsel for the respondents had no objection to any of the aforesaid prayers made by the petitioner and, even it was prayed on behalf of the respondent that an independent sole arbitrator be appointed by this Court.
16. Therefore, it is not a disputed fact that this Court appointed the sole arbitrator on the basis of the stand taken by the parties and with their consent, appointed the sole arbitrator. It is also not in question whether the said statement was made by the learned counsel by the parties. In the instant case, the applicant has been unable to specifically show how the acts of the non-applicant amount to commission of fraud before this Court.
17. In any case, the instant application has been filed after a passage of three years since the said order was passed by this Court. Moreover, the issue as to the competence to arbitrate on the lis in question has also not been agitated before the arbitral tribunal.
18. It is also stated by the parties that the arbitral proceedings, as per the statements made by the counsels and as per the contents of the application, qua the dispute between parties are still ongoing before the arbitrator.
19. Therefore, the instant application prima facie seems to be nothing but a gross abuse of process of law and appears to be solely intended to delay and derail the arbitral proceedings. In the opinion of this Court, there is no merit whatsoever in the instant application and accordingly the same merits dismissal.
20. In view of the aforesaid, the instant petition stands dismissed.
21. Pending applications viz. I.A. 3514/2023, I.A. 3515/2023 and I.A. 3516/2023 also stand dismissed.
22. The order be uploaded on the website forthwith.