Full Text
Date of Decision: 30.05.2019
M/S TIGMANSHU DHULIA FILMS PVT LTD. ..... Petitioner
Through: Mr.Arvind Varma, Sr. Adv. with Mr.Uday Singh, Mr.Vinay Garg, Ms.Saloni
Tangri Jawa, Ms.Aditi Mohan, Mr.Saurabh Ajay Gupta, Advs.
Through: Ms.Tatini Basu, Adv.
For the reasons stated in the application, the delay in filing the reply is condoned and the reply is taken on record.
Arb.P. 124/2019
JUDGMENT
1. This petition has been filed by the petitioner under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the ‘Act’) seeking appointment of an Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Agreement dated 21.04.2015. 2019:DHC:2969 Arb.P. No.124/2019 Page 2
2. The Arbitration Agreement is contained in Clause 17.[1] of the said Agreement and is reproduced hereinbelow: “17.[1] All the disputes and difference arising out or in any way touching or concerning the Services shall be referred to the sole arbitrator appointed by the Secretary General, Rajya Sabha. The award of such arbitration shall be final and binding on the parties to this contract. The Arbitration proceeding shall be held at Delhi only. There will be no objection that the person so appointed is or was in the employment of the Rajya Sabha and as an employee of the Rajya Sabha had during the course of his duties expressed views on all or any of the matter of difference or dispute.”
3. The petitioner by a legal notice dated 03.10.2018 called upon the respondent to pay Rs.8,48,59,806/- and Rs. 1,62,61,200/- plus taxes within a period of 15 days from the receipt of notice.
4. The respondent by its reply dated 24.10.2018 stated that detailed examination of files/records was being conducted and the reply would be sent in three to four weeks.
5. The petitioner again by a notice dated 28.11.2018 reiterated its demand. As far as arbitration is concerned, the petitioner stated as under:
6. The respondent, however, by its reply dated 28.12.2018 refuted the demand of the petitioner and stated that the respondent has appointed a one Member Enquiry Committee to look into its own affairs.
7. In the above reply, the respondent further stated as under:
8. The petitioner, thereafter, filed the present petition, without calling upon the Secretary General of Rajya Sabha to appoint an Arbitrator.
9. Counsel for the respondent submits that apart from the other objections, as the petitioner has not approached the Appointing Authority, that is, the Secretary General, Rajya Sabha, the present petition is not maintainable.
10. On the other hand, learned senior counsel for the petitioner submits that as Clause 17.[1] of the Agreement provides that a person, who is in the employment of the Rajya Sabha and as an employee of the Rajya Sabha had during the course of his duties expressed views on all or any of the matter Arb.P. No.124/2019 Page 5 of dispute, could also have been appointed by the Secretary General, the petitioner did not have to approach the Secretary General as such appointment could not have been made in view of the judgment of the Supreme Court in TRF Ltd. vs. Energo Engineering Projects Ltd. (2017) 8 SCC 377.
11. I am unable to agree with the submissions made by the learned senior counsel for the petitioner. Clause 17.[1] of the Agreement can be bifurcated into two parts. While the first part provides that the appointing Authority of an Arbitrator shall be the Secretary General, Rajya Sabha, another part of the said Clause provides that the Arbitrator so appointed can be an employee of the Rajya Sabha itself. Even if the second part of the Arbitration Agreement can no longer be enforced in view of Section 12(5) of the Act read with the Seventh Schedule to the Act and as held by the Supreme Court in its judgment in TRF Ltd. (supra), however, that would have no effect on the first part of the Arbitration Agreement as there is no ineligibility attached to the Appointing Authority.
12. Section 11(6) of the Act confers jurisdiction on this Court to appoint an Arbitrator only when the person entrusted with the function of appointing an Arbitrator in accordance with the procedure agreed between the parties, fails to act.
13. In the present case, admittedly, the petitioner has not even approached the Appointing Authority. Therefore, no cause of Arb.P. No.124/2019 Page 6 action for filing of the present petition can be said to have accrued in favour of the petitioner.
14. The petition is therefore dismissed as being premature, granting liberty to the petitioner to invoke the Arbitration Agreement in accordance with the provisions thereof. There shall be no order as to costs.
NAVIN CHAWLA, J MAY 30, 2019 RN