GENESISINFRATECHPVTLTD v. TARUNPURI

1. The present petitions have been filed by the petitioner under Section 11(5)ofthe Arbitration and Conciliation Act, 1996 for appointment ofan Arbitrator.

2. It is the case ofthe petitioner thatthe petitioner being in need ofsome funds in respect ofits ongoing projects was looking for resources to raise iimdsthrough loans,wasapproached bythe respondent. 2022:DHC:6000

3. It is a conceded case after detailed negotiations two documents, i.e., loan agreement and agreement to sell in respect of Shop No.72, ad measuring 1184 Sq. Ft., second floor, Genesis Mall of the petitioner at Bhiwadi,Rajasthan were executed on January 30,2018.

4. Since there was delay in repayment ofloan,the parties in the first half of2019 have further negotiated and agreed for extension oftime period for repayment of the loan and accordingly post-dated cheques ('PDCs', for short)given earlier were replaced with new PDCs.

5. It is the case ofthe petitioner that after multiple sittings and various discussions,it was agreed that the liability ofthe respondent herein shall be ^ 35.[5] Lacs.

6. It is the case of the petitioner that respondent had acted upon the revised arrangement and paid the amount through NEFT during the period January 1,2021 to March 1,2021 towards the changed shop and took back the said amount in cash.

7. It is the case of the petitioner that the respondent without giving a prior intimation had presented the PDCs which got dishonoured resulting in the respondent filing complaints under Section 138 of the Negotiable Instruments Act.('NF,Actfor short)

8. It is the case of the petitioner that he had invoked the arbitration clause in the loan agreements seeking appointment of an arbitrator to adjudicate the disputes arising between the parties. Learned counsel for the petitioner would urge thatthe stipulation in the loan agreements is very clear inasmuch as any inter-se dispute between the parties arising from the loan agreements and the agreements to sell shall be adjudicated by the learned Arbitrator.

9. On the other hand, learned counsel appearing for the respondent would contest the prayers made by the petitioner for appointment of an arbitrator. He states,respondent had approached the concerned Court with complaints under Section 138 ofNI Act which is still pending. He states, attempt is to overcome the allegations made by the respondent in the complaints under Section 138 ofthe NI Act.

10. On this submission ofthe learned counsel for the respondent,learned counsel foi the petitioner states,it is notthe case ofthe petitioner that he is seeking anyleliefconcerningthe complaints made bytherespondentagainst the petitioner under Section 138 of the NI Act. He states, claim of the petitioner appointing the Arbitrator shall be with regard to the specific perfonnance ofthe agreementsto sell.

11. Mr. Singh at this stage states, if such a submission of the learned counsel for the petitioner is recorded,he has no objection ifthe claims ofthe petitioner with regard to specific performance ofthe agreements to sell is refen-ed for adjudication to the learned Arbitrator.

12. I may state in ARB.P.86/2022,the loan agreement and agreementto sell is in respectofShop No.76 admeasuring 1052 Sq.Ft.and were executed on January 30,2018.

13. Noting the submissions made by the learned counsel for the parties, the fact that a disputes have arisen between the parties and the loan agreements fairly stipulates the adjudication ofthose disputes through the process ofarbitration, this Court deem it appropriate to refer the parties to Delhi International Arbitration Centre for adjudication of their disputes including claims and counter-claims, if any. The DIAC shall appoint one single Arbitrator from its panel for adjudication of disputes in both the [-0 petitions. The appointment ofthe Arbitrator shall be regulated by the Rules ofDIAC which shall include the fee as well.

14. I take on record the submission made by the learned counsel for the petitioner that he shall confine his prayer to the specific performance ofthe agreements to sell. It is made clear,the petitioner shall not contest the right ofthe respondent to invoke the jurisdiction ofthe concerned criminal Court under Section 138 ofthe NT Act before the Arbitrator.

15. The petitions stand disposed of. ( V.KAMESWAR RAO,J