Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
MRS. BELA MATHUR ..... Petitioner
Through: Mr Mukul Talwar, Senior Advocate with Ms Aastha
Dhawan and Ms Pallavi Saigal, Advocates.
Through: Mr Anurag Rawat, Mr Sudhir Kumar and Mr Manish Kumar, Advocates.
VIBHU BAKHRU, J. (ORAL)
1. The petitioner has filed the present petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereafter ‘the A&C Act’), inter alia, praying as under:- “i. Appoint a sole Arbitrator for adjudication of disputes between the parties and direct that the arbitration proceedings be conducted as per the Rules of the Delhi International Arbitration Centre, Delhi High Court, New Delhi. 2021:DHC:2547 ii. Award Costs of these proceedings in favour of the Petitioner and against the Defendant;”
2. The petitioner had purchased an apartment (1BHK apartment, bearing No. B-1, Ground Floor, Building ‘C’ in Project, named, “Devasthali-the Valley of Gods” located at property No. 11/49 situated at Issorcim Village, Mormugao Taluka) from the respondent. The Sale Deed in respect of the said property was executed on 19.07.2010. On the same date, the parties also entered into an ‘Agreement for Management’ (hereafter ‘the Agreement’) whereby they agreed that the respondent would use the said apartment as a part of a Holiday Home Resort for a period of ten years from the date of execution of the Agreement.
3. The petitioner avers that she was induced into believing that the respondent would enter into an arrangement with a leading five-star resort/hotel and the use of the said apartment would yield high revenues.
4. The petitioner terminated the Agreement by a notice dated 31.07.2019 alleging various defaults on the part of the respondents.
5. Thereafter, the petitioner also sent a legal notice dated 27.08.2019 to M/s Alcott Town Planners Private Limited informing them about the action initiated against the respondent. However, M/s Alcott Town Planners Private Limited also failed to respond to the legal notices.
6. On 20.09.2019, the petitioner sent a legal notice invoking the agreement to refer the disputes to arbitration (Arbitration Clause under the Agreement) and calling upon the respondent to refer the disputes to arbitration under the Rules of the Delhi International Arbitration Centre (DIAC).
7. The respondent responded to the said notice, inter alia, asserting that there are no disputes that require to be adjudicated by the arbitrator.
8. The petitioner, thereafter, sent another notice dated 12.12.2019 calling upon the respondent to pay a sum of ₹50,27,309/- along with interest within a period of one week from the receipt of the said notice. The said claims were also disputed by the respondent.
9. The Agreement includes an Arbitration Clause that reads as under:
10. Mr. Rawat, the learned counsel appearing for the respondent does not dispute that the parties had entered into the Agreement. He, however, submits that there are no disputes as the said Agreement had expired by efflux of time. Second, he submits that this Court does not have jurisdiction to entertain the present petition as the party had specifically stipulated that the Courts at Goa would have jurisdiction.
11. Insofar as the first contention is concerned that no disputes exist between the parties, the same is unmerited. It is clear from the notices issued by the petitioner that she had called upon the respondent to pay certain amounts, which the respondent had disputed.
12. The scope of examination under Section 11 of the A&C Act is limited to existence of an agreement to refer the disputes to arbitration. In this case, there is no dispute that the parties had entered into the Agreement which includes an Arbitration Clause.
13. The contention that the Courts at Goa alone have the jurisdiction to entertain the petition under Section 11 of the A&C Act as the same has been specifically stipulated in the Arbitration Clause is unpersuasive. A plain reading of the Arbitration Clause indicates that the parties had agreed that the disputes would be resolved under the A&C Act. The jurisdiction of the Civil Courts at Goa was referred only in respect of cases that were not subject to arbitration. The word “otherwise” in the last sentence of Clause 19 of the Agreement as set out above, clearly indicates that Civil Courts at Goa would have the jurisdiction only in respect of actions other than arbitration. And, in respect of disputes that did not fall within the scope of resolution by arbitration.
14. The registered office of the respondent is situated in New Delhi and it is asserted on behalf of the petitioner that its claim is capable of being satisfied by personal obedience by the respondent within the territorial jurisdiction of this Court. Thus, by virtue of the proviso to Section 16 of the Code of Civil Procedure 1908, this court would have jurisdiction to decide the questions forming subject matter of arbitration if it were the subject matter of a suit. In this view, this court would fall within the definition of ‘court’ under Section 2(e)(i) of the A&C Act.
15. It is also relevant to note that the petitioner had filed a petition under Section 9 of the A&C Act being OMP(I)(COMM) 82/2021 seeking certain interim measures of protection. The said petition was allowed by an order dated 27.04.2021. The respondent appealed against the said order before the Division Bench of this Court, being FAO(OS)(COMM) 83/2021. The said appeal was disposed of by the Division Bench by an order dated 11.06.2021, whereby the order passed by this Court was modified to the limited extent of directing the petitioner herein to pay maintenance charges as claimed by the respondent without prejudice to its rights and contentions.
16. Mr Talwar, learned senior counsel appearing for the petitioner states that although the respondent had filed an appeal against the order dated 27.04.2021, it had not raised any challenge on the ground that this court lacked the territorial jurisdiction to pass the order under Section 9 of the A&C Act. It had confined its challenge in its appeal [FAO(OS)(COMM) 83/2021] to the pecuniary jurisdiction of this Court.
17. Section 42 of the A&C Act is relevant and reads as under: “42. Jurisdiction.—Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.”
18. Thus, by virtue of Section 42 of the A&C Act, this Court alone would have the jurisdiction to entertain the present petition as prior to the present petition an application under section 9 of the A&C Act, was moved before this court.
19. Mr Rawat had referred to the decision of the Supreme Court in New Moga Transport Co. v. United India Insurance Co. Ltd. and Others.: (2004) 4 SCC 677. However, the said decision is not applicable in the facts of this case. In that case, the consignment had expressly provided that the courts “where head office of the concerned party is situated would only have the jurisdiction regarding the said note”. The controversy in the said case was turned on the use of the word “only”. The Supreme Court had held that the said word clearly indicated the intention of the parties to agree that the courts where the head office of the concerned party was situated would have exclusive jurisdiction in the matter. No such controversy arises in this case as there is no clause which indicates that the parties had agreed that courts at any specific City/State would have exclusive jurisdiction with regard to the arbitral proceedings.
20. In view of the above, this Court considers it apposite to allow the present petition. Ms. R. Kiran Nath, District Judge (retired), (Mobile No.9910384659) is proposed to be appointed as the Sole Arbitrator to adjudicate the disputes between the parties. The parties are at liberty to approach the learned Arbitrator for eliciting his consent and the necessary disclosure under Section 12(1) of the A&C Act. Let the same be furnished before this Court before the next date of hearing.
21. List on 07.09.2021.
VIBHU BAKHRU, J AUGUST 18, 2021 RK