Full Text
ARB.P.10/2021
GETAMBER ANAND Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
24.
GETAMBER ANAND
Through:
Petitioner Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
GETAMBER ANAND Petitioner 2021:DHC:4455
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
DOMUS GREENS PRIVATE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
ALMOND INFRABUILD PVT.LTD. Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
ANAND DIVINE DEVELOPERS PRIVATE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Viraiani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
ATS HOUSING PRIVATE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
2021:DHC:4455
ATS INFRASTRUCTURE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Vinnani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
DOMUS GREENS PRIVATE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates.
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
ATS INFRASTRUCTURE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
2021:DHC:4455 r
DALMIA FAMILY OFFICE TRUST& ORS. Respondents
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
AND
ALMIND INFRABUILD PRIVATE LIMITED Petitioner
Through: Mr Kartik Nayar and Mr Sarthak Malhotra,Advocates
Through: Mr Rajiv Nayar, Sr. Advocate, Mr Rajiv Virmani, Sr. Advocate with Mr
Ajay Bhargava, Mr Aseem Chaturvedi, Ms Wamika Trehan and
Ms Raddhika Khanna,Advocates.
08.01.2021 [Hearing held through videoconferencmg]
ORDER
1. These petitions have been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereafter 'the Act'). The petitioners pray that an Arbitral Tribunal be constituted for adjudicating the disputes that have arisen between the parties in respect of several agreements. It is apparent that there is some commonality in these petitions and, therefore, this court 2021:DHC:4455 considers it apposite, with the consent ofthe parties,to pass a consolidated order. The parties have identified nine separate transactions and agree that the said transactions are covered by number ofseparate agreements, which are stated hereinafter. The parties are ad idem that a separate reference is required to be made for each ofthe nine transactions. Although the Arbitral Tribunal may be at liberty to adjudicate the references simultaneously, the same shall for all intents and purposes are required to treat as separate arbitral proceedings. The parties are also ad idem that arbitration agreements exist between them and the disputes arising from the subject agreements are required to be resolved through arbitration.
2. There was some controversy regarding whether the Arbitral Tribunal is required to be eonstituted by three Arbitrators or by a Sole Arbitrator. However, the parties have since resolved that dispute and have agreed that notwithstanding the constitution ofArbitral Tribunal as envisaged in various clauses of the subject agreements, the disputes be referred to a Sole Arbitrator without disturbing the other conditions of the arbitration agreements(clauses).
3. The above captioned petitions include eight petitions under Section 11(6)ofthe Act, which have been preferred by five ATS Group Companies, namely. Almond Infrabuild Private Limited, Anand Divine Developers Private Limited, ATS Plousing Private Limited, ATS Infrastructure Limited and Domus Greens Private Limited. Of these, in five petitions [ARB.P.645/2020, ARB.P.648/2020, ARB.P.649/2020, ARB.P. 656/2020, ARB P. 661/2020], the concerned petitioners seek appointment of the Respondent's Nominee Arbitrator for constituting a three Member Arbitral 2021:DHC:4455 Tribunal; and in three petitions[ARB P. 662/2020, ARB P. 663/2020 and ARB P. 669/2020],the petitioners seek appointment ofa Sole Arbitrator,to try and adjudicate the disputes between the parties.
4. Mr. Getamber Anand {as the Personal Guarantor)has preferred three Arbitration Petitions under Section 11(6)ofthe Act,being ARB P. 10/2021 and ARB P. 12/2021,seeking appointment ofa Sole Arbitrator; and ARB P. 11/2021,seeking appointmentofthe respondent's Nominee Arbitrator.
5. The subject matter of the aforementioned eleven (11) Arbitration petitions is covered by the following nine (09) transactions between the parties as named in the agreements covering each ofthe said transactions
I. Arb P. 645/2020 - Almond Infrabuild Private Limited v. Dalmia
Family Office Trust; Arb P. 663/2020 - Almond Infrabuild Private Limited v. Dalmia Family Office Trust; and Arb P. 12/2021- Getamber Anand v. Dalmia Family Office Trust. The disputes in the above Arbitration petitions pertain to the transaction covered by the following Agreements
(i) Investment Agreement dated 03.09.2013, between Dalmia
(ii) First Supplemental Agreement dated 30.04.2018, between
Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited and Getamber Anand of the other part; (hi) Second Supplemental Agreement 18.12.2018 between Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited and Getamber Anand of the other part;
(iv) Third Supplemental Agreement dated 18.10.2019 between
(v) Corporate Guarantee Agreement dated 03.09.2013
(vi) Corporate Agreement dated 20.12.2018; between Dalmia
(vii) Corporate Guarantee Agreement dated 18.10.2019 between Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited ofthe other part; (viii)Personal Guarantee Agreement dated 03.09.2013,between Dalmia Family Office Trust of one part and Getamber Anand ofthe other part;
(ix) Personal Guarantee Agreement dated 20.12.2018between
(x) Personal Guarantee Agreement dated 18.10.2019between
Dalmia Family Office Trust of one part and Getamber Anand ofthe other part Arbitration Clause 14 of the Principal Agreement, that is, the Investment Agreement provides for disputes to be adjudicated by a panel of three Arbitrators. Clause 8 the Corporate Guarantee and the Personal Guarantee Agreements provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, former judge of the 2021:DHC:4455 Supreme Court ofIndia,as the Sole Arbitrator.
II. Arb P. 661/2020 -Domus Greens Private Limited v. Dalmia
Family Office Trust &Anr; Arb P. 669/2020- Domus Greens Private Limited v. Dalmia Family Office Trust; and Arb P. 12/2021 - Getamber Anand v. Dalmia Family Office Trust. The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements
(i) Investment Agreement dated 03.09.2013, between Dalmia
(ii) First Supplemental Agreement dated 30.04.2018,between
Dalmia Family Office Trust ofone part and Domus Greens Private Limited, ATS Infrastructure Limited, and Getamber Anand of the other part (ATS Infrastructure Limited was a Confirming Party)
(iii) Second Supplemental Agreement 18.12.2018 and between
Dalmia Family Office Trust ofone part and Domus Greens Private Limited, ATS Infrastructure Limited, and Getamber Anand of the other part (ATS Infrastructure Limited was a Confirming Party)
(iv) Third Supplemental Agreement dated 18.10.2019 between
Dalmia Family Office Trust ofone part and Domus Greens Private Limited, ATS Infrastructure Limited, and Getamber Anand of the other part (ATS Infrastructure Limited was a Confirming Party)
(v) Corporate Guarantee Agreement dated 03.09.2013, between Dalmia Family Office Trust ofone part and ATS Infrastructure Limited ofthe other part;
(vi) Corporate Agreement dated 20.12.2018 between Dalmia
(vii) Corporate Guarantee Agreement dated 18.10.2019 between Dalmia Family Offiee Trust of one part and Domus Greens Private Limited ofthe other part (viii)Personal Guarantee Agreement dated 03.09.2013,between Dalmia Family Office Trust of one part and Getamber
(ix) Personal Guarantee Agreement dated 20.12.20ISbetween
Dalmia Family Office Trust of one part and Getamher Anand ofthe other part Arbitration Clause 14 of the Principal Agreement, that is, the Investment Agreement provides for disputes to be adjudicated by a panel of three Arbitrators. Clause 8 the Corporate Guarantee and the Personal Guarantee Agreements provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator.
III. Arb P. 656/2020 -ATS Infrastrueture Limited v. Dalmia Family
Holdings LLP; Arb P.662/2020-ATS Infrastrueture Limited v. Dalmia Family Holdings LLP;and Arb P. 10/2021 - Getamber Anand v. Dalmia Family Holdings LLP 2021:DHC:4455 n The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements
(i) Investment Agreement dated 31.03.2014, between Dalmia
(ii) First Supplemental Agreement dated 30.04.2018,between
Dalmia Family Holdings LLP of one part and ATS Infrastructure Limited and Getamber Anand of the other part; (hi) Second Supplemental Agreement 18.12.2018, between Dalmia Family Floldings LLP of one part and ATS Infrastructure Limited and Getamber Anand of the other part;
(iv) Third Supplemental Agreement dated 18.10.2019,.between
(v) Corporate Guarantee Agreement dated 31.03.2014, between Dalmia Family Floldings LLP of one part and ATS Infrastructure Limited ofthe other part;
(vi) Corporate Agreement dated 20.12.2018, between Dalmia
(vii) Corporate Guarantee Agreement dated 18.10.2019, between Dalmia Family Floldings LLP of one part and ATS Infrastructure Limited ofthe other part; (viii)Personal Guarantee Agreement dated 25.07.2014,between Dalmia Family Holdings LLP of one part and Getamber Anand ofthe other part;
(ix) Personal Guarantee Agreement dated 20.12.2018 between
Dalmia Family Holdings LLP of one part and Getamber Anand ofthe other part; and Dalmia Family Holdings LLP of one part and Getamber Anand ofthe other part Arbitration Clause 14 of the Principal Agreement, i.e., the Investment Agreement provides for disputes to be adjudicated by a panel of three Arbitrators. The Clause 8 the Corporate Guarantee and the Personal Guarantee Agreements provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator. IV.Arb P. 645/2020 - Almond Infrabuild Private Limited v. Dalmia Family Office Trust; Arb P. 12/2021- Getmaber Anand v. Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements:
(i) Flats Buyer Agreement dated 15.06.2015,between Dalmia
(ii) Buy Back Agreement dated 15.06.2015, between Dalmia
(iii) First Supplemental Agreement to the Flats Buyer
Agreement dated 18.12.2018between Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited ofthe other part; 2021:DHC:4455
(iv) First Supplemental Agreementto the Buy Back Agreement dated 18.12.20ISbetween Dalmia Family Office Trust of one part and Almond Inffabuild Private Limited of the other part;
(v) Second Supplemental Agreement to the Flats Buyer
Agreement dated 22.10.2019between Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited ofthe other part;
(vi) Second Supplemental Agreement to the Buy Back
Agreement dated 22.10.2019between Dalmia Family Office Trust of one part and Almond Infrabuild Private Limited ofthe other part; (vii)Personal Guarantee Agreement dated 15.06.2015,between (viii)Personal Guarantee Agreement dated 20.12.2018 between Dalmia Family Office Trust of one part and Getamber
(ix) Personal Guarantee Agreement dated 22.10.2019between
Arbitration Clause 13 of the Principal Buy Back Agreement provides for disputes to be adjudicated by a panel of three arbitrators. The Clause 8 the Personal Guarantee Agreement provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator.
V. Arb P.648/2020-Anand Divine Developers Private Limited v.
Dalmia Family Office Trust; Arb P. 12/2021 - Getmaber Anand v. Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements:
(i) Flats Buyer Agreement dated 11.06.2015,between Dalmia
Family Office Trust of one part and Anand Divine Developers Private Limited ofthe other part; ^ (ii) Buy Back Agreement dated 11.06.2015, between Dalmia Family Office Trust of one part and Anand -Divine Developers Private Limited ofthe other part; Agreement dated 18.12.2018, between Dalmia Family Office Trust of one part and Anand Divine Developers Private Limited ofthe other part;
(iv) First Supplemental Agreementto the Buy Back Agreement dated 18.12.2018, between Dalmia Family Office Trust of one part and Anand Divine Developers Private Limited of the other part; Agreement dated 22.10.2019, between Dalmia Family Office Trust of one part and Anand Divine Developers ® PrivateLimited ofthe otherpart; Agreement dated 22.10.2019 (vii)Personal Guarantee Agreement dated 11.06.2015,between (viii)Personal Guarantee Agreement dated 20.12.2018between Dalmia Family Office Trust of one part and Getamber Anand ofthe other part; 2021:DHC:4455 1^ Dalmia Family Office Trust of one part and Getamber Anand ofthe other part. Arbitration Clause 13 of the Principal Buy Back Agreement provides for disputes to be adjudicated by a panel of three arbitrators. The Clause 8 the Personal Guarantee Agreement provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator. VI.Arb P. 649/2020 - ATS Housing Private Limited v. Dalmia Family Office Trust; Arb P. 12/2021 - Getmaber Anand v. Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements
(i) Flats Buyer Agreement dated 20.05.2015,between Dalmia
(ii) Buy Back Agreement dated 20.05.2015, between Dalmia
Agreement dated 18.12.2018, between Dalmia Family Office Trust ofone part and ATS Housing Private Limited ofthe other part;
(iv) First Supplemental Agreementto the Buy Back Agreement dated 18.12.2018, between Dalmia Family Office Trust of ]b one part and ATS Housing Private Limited of the other part; Agreement dated 22.10.2019, between Dalmia Family Office Trust ofone part and ATS Housing Private Limited ofthe other part; Agreement dated 22.10.2019 (vii)Personal Guarantee Agreement dated 20.05.2015,between (viii)Personal Guarantee Agreement dated 20.12.20ISbetween Dalmia Family Office Trust of one part and Getamber Arbitration Clause 13 of the Principal Buy Back Agreement provides for disputes to be adjudicated by a panel of three arbitrators. The Clause 8 the Personal Guarantee Agreement provides for the disputes to be adjudicated by a Sole Arbitrator. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator.
VII. Arb P. 645/2020 - Almond Infrabuild Private Limited v.
Dalmia Family Office Trust; Arb P. 11/2021 - Getamber Anand v. Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements: 2021:DHC:4455 n
(i) Loan Agreement dated 15.06.2015, between Dalmia
(ii) Supplemental Loan Agreement dated 18.12.2018 between
(iii) Personal Guarantee Agreement dated 15.06.2015,between
(iv) Personal Guarantee Agreement dated 20.12.2018 between
Arbitration Clause 14 in the Principal Agreement i.e., the Loan Agreement provides for the disputes to be adjudicated by a panel of three arbitrators. Clause 8 of the latest Personal Guarantee Agreement provides for the disputes to be adjudicated by a panel ofthree arbitrators. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator. VIII.Arb P.648/2020 - Anand Divine Developers Private Limited v. Dalmia Family Office Trust; Arb P. 11/2021: Getamber Anand v.Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements;
(i) Loan Agreement dated 11.06.2015, between Dalmia
(ii) Supplemental Loan Agreement dated 18.12.201Sbetween
(iii) Personal Guarantee Agreement dated 11.06.2015,between
(iv) Personal Guarantee Agreement dated 20.12.2018, between Dalmia Family Office Trust of one part and Getamber Anand ofthe other part Arbitration Clause 14 in the Principal Agreement i.e., the Loan Agreement provides for the disputes to be adjudicated by a panel of three arbitrators. Clause 8 of the latest Personal Guarantee Agreement provides for the disputes to be adjudicated by a panel ofthree arbitrators. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator. IX.Arb P. 649/2020 - ATS Housing Private Limited v. Dalmia Family Office Trust; Arb P. 11/2021 - Getamber Anand v. Dalmia Family Office Trust; The disputes in the above Arbitration Petitions pertain to the transaction covered by the following Agreements:
(i) Loan Agreement dated 20.05.2015, between Dalmia
(ii) Supplemental Loan Agreement dated 18.12.2018,between
(iii) Personal Guarantee Agreement dated 20.05.2015,between
(iv) Personal Guarantee Agreement dated 20.12.2018,between
Dalmia Family Office Trust of one part and Getamber Anand ofthe other part Arbitration Clause 14 in the Principal Agreement i.e., the Loan Agreement provides for the disputes to be adjudicated by a panel of three arbitrators. Clause 8 of the latest Personal Guarantee Agreement provides for the disputes to be adjudicated by a panel ofthree arbitrators. However, as noted above the parties have agreed that all the subject disputes be adjudicated by a Sole Arbitrator. Parties have, consented to the disputes arising out of the aforesaid Agreements being referred for arbitration before Hon'ble Mr. Justice Swatanter Kumar, Retired Judge of the Supreme Court,as the Sole Arbitrator.
6. Accordingly, with the consent and at the instance ofthe parties, this Court appoints Hon'ble Mr. Justice Swatanter Kumar,formerjudge ofthe Supreme Court ofIndia(Address: A-118,2"^ Floor,Defence Colony,New Delhi- 110024;Phone-+91 9560413636)as the Sole Arbitratorto adjudicate all disputes and differences arising between all the parties in cormection with/or in relation to nine sets ofagreements as set outin paras 3(1)to 3
(IX) hereinabove. As clarified earlier, the disputes relating to nine sets of agreements shall be treated as sepatate references and separate arbitral proceedings. The appointment of the learned Arbitrator is subject to the Arbitrator making a disclosure under Section 12(1)ofthe Act and not being disqualified under Section 12(5)ofthe Act. 'zD
7. It is clarified that all rights and contentions ofthe parties including the contentions regarding whether the said agreements subsist are reserved. Nothing stated in this order would be construed as any ofthe parties giving up any of their rights and contentions. This includes the contentions regarding any ofthe agreements referred to above have been superseded or novated. The fact that the parties have agreed that the Arbitral Tribunal be constituted by a sole Arbitrator instead of three members as envisaged in certain Agreement would not in any manner be read to mean that the concerned parties have given up any oftheir contentions regarding the said agreements
8. The respective non-claimants would also be at liberty to file their counter claims in the aforesaid references.
9. The petitions are allowed in the aforesaid terms.
VIBHU BAKHRU,J JANUARY 8,2021 MK