I.A.14662/2021 (u/S 151 CPC filed by respondent No.1)
1. Against the order dated 12.08.2021 passed by this Court, wherein this Court had appointed Mr.Justice (Retd.) Pankaj Jaiswal the sole Arbitrator to adjudicate the disputes raised in the main petition, respondent No.1- Shipra Estates Ltd. had preferred a Special Leave Petition [Special Leave to Appeal (C) No(s). 13913/2021], which was disposed of on 27.09.2021 by the Hon’ble Supreme Court holding as under:-
“Mr. Kapil Sibal, learned senior counsel contends that the concession given by the advocate appearing for the petitioner before the High Court was only to agree to the appointment of Arbitrator, but not for appointing Justice (Retd.) Pankaj Jaiswal, Former Judge of the High Court of Judicature at Allahabad, Uttar Pradesh. For, Justice Vikramajit Sen, Former Judge of the Supreme Court of India was already appointed by the Court vide order dated 02.08.2021.
This grievance cannot be entertained by way of special leave petition. It is for the High Court to clarify the position as to whether the learned counsel appearing for the petitioner had or had not agreed on the name of the Arbitrator mentioned in the impugned order dated 12.08.2021. The petitioner may take out an appropriate application before the High Court.”
2. Pursuant to the aforesaid order of the Hon’ble Supreme Court, applicant/ defendant No.1 has preferred the present application inter alia praying that the order dated 12.08.2021 be recalled to the extent of appointment of Mr. Justice (Retd.) Pankaj Jaiswal as Arbitrator, as defendant No.1 never consented to this appointment and has further sought modification to the effect that Mr. Justice (Retd.) Vikramajit Sen be appointed as Arbitrator in this case.
3. At the hearing, Mr. Rakesh Khanna, learned senior counsel appearing on behalf of applicant/ respondent No.1 submitted that the judgment dated 12.08.2021 was passed by this Court without affording an opportunity of hearing to respondent No.1 and that counsel appearing on behalf of respondent No.1 was unable to place before this Court the order dated 02.08.2021 passed by a Coordinate Bench of this Court in [ARB.P. 513, 514 & 516 of 2021, Annexure-A4] wherein Mr. Justice (Retd.) Vikramajit Sen was appointed sole Arbitrator to adjudicate the disputes with regard to Loan Agreements mentioned therein.
4. Learned senior counsel next submitted that the Loan Agreements and Agreement to Sell dated 30.05.2021 have a clear nexus and so, to avoid conflicting Awards, these cases should be referred to a common arbitral tribunal. In support of his submissions, learned senior counsel relied upon decision of Hon’ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited & Anr. (2021) SCC OnLine SC 781.
5. The present application is vehemently opposed by Mr. Rajiv Nayar, learned senior counsel appearing on behalf of respondent No.4, who submitted that at the time of hearing on 12.08.2021, learned counsel appearing on behalf of defendant No.1 had accorded concession to the appointment of Arbitrator by this Court and did not at all recommend the name of Mr. Justice (Retd.) Vikramajit Sen, even though this Court had called upon the parties to put-forth their recommendations for appointment of Arbitrator and it is only when no recommendation was made, that this Court had appointed the Arbitrator.
6. It was emphatically submitted by learned senior counsel for respondent No.4 that the earlier round of petitions [ARB.P. 513, 514 & 516 of 2021, Annexure-A4] wherein Mr. Justice (Retd.) Vikramajit Sen has been appointed the sole Arbitrator pertain to loan agreements executed between 2017 and 2020, whereas in the present petition the dispute is with regard to Agreement to Sell dated 30.05.2021 and even the parties to the Agreements in question are also different. It was further submitted that the claimants in arbitral proceedings before Mr. Justice (Retd.) Vikramajit Sen is Shipra Estate Limited, Shipra Leasing Private Limited and Shipra Hotels Limited, whereas before the arbitral tribunal comprising of Mr. Justice (Retd.) Pankaj K. Jaiswal, petitioner is DLF Home Developers Private Limited. Also submitted that in those petitions, notice dated 14.04.2021 invoking arbitration was issued, whereas in the present case, arbitration was invoked vide notice dated 08.07.2021. Even the statement of claims raised before the two Arbitral Tribunals are different and also conflicting stands have been taken by respondent No.1 in two sets of arbitration proceedings.
7. Lastly, learned senior counsel for respondent No.4 submitted that petitioner has filed its statement of claim before the Arbitral Tribunal on 17.10.2021 and respondent No.4 has filed its statement of defence on 23.11.2021, along with application under Section 16 of the Act. As per the schedule, the parties are required to file their rejoinders and reply to the counter claims by 21.12.2021 and affidavits of admission and denial thereafter. Though respondent No.1 has chosen not to file or participate in the arbitral proceedings, even though being aware of the same and has rather belatedly filed the present application after three months of appointment order and two months of liberty granted by the Hon’ble Supreme Court of India. Hence, learned counsel submitted that the present application deserves clear dismissal by this Court.
8. This Court had heard extensive arguments on behalf of defendants No.1 & 4 and reserved orders in the present application on 09.12.2021 and also granted extension of six weeks to respondent No.1 to file statement of defence/counter claim [in IA No. 16359/2021] before the learned Arbitrator. However, while dictating the order, this Court found that petitioner had neither filed reply nor written submissions despite directions and, therefore, the matter was listed on 20.12.2021 for directions and called upon the petitioner to file reply to the present application on affidavit.
9. The reply-affidavit on behalf of petitioner came to be filed on 21.12.2021, wherein petitioner has averred that petitioner is agnostic in the present petition and shall be bound by the directions and orders of this Court.
10. The crux of the present case is that for adjudication of disputes in respect of piece of land admeasuring 73 acres [2,95,421 square meters] situated in Sector 128, Noida, District Gautam Budha Nagar, Uttar Pradesh, Noida, this Court had appointed Mr. Justice (Retd.) Pankaj Jaiswal the sole Arbitrator in this case.
11. The present application has been filed challenging the appointment of the Arbitrator. Relevantly, the Prayers in the application read as under:-
“a. Pass an Order thereby recalling the order dated 12th August 2021 to the extent of appointment of Hon’ble Mr. Justice Pankaj Jaiswal as the Sole Arbitrator, as the Applicant had only submitted that the matter is required to be referred to Arbitration but never consented to appointment of Hon’ble Justice (Retd.) Pankaj Jaiswal, Former Judge of the High Court of Judicature at Allahabad, Uttar Pradesh as recorded in para 10 of the order dated 12th August, 2021 passed by this Hon’ble Court; and
b. Pass an order thereby modifying the order dated 12th August,2021 and appointing Hon’ble Mr. Justice Vikramjit Sen (Retired) as an Arbitrator to arbitrate on the disputes emanating out of the Agreement to Sell dated 30th May 2021; and / or
12. Further Para-11 of the present application reads as under:-
“That in view of the aforesaid, the Respondent No. 1 is constrained to prefer the present Application before this Hon’ble Court seeking recall of the order dated 12th August, 2021, as far as it relates to appointment of Hon’ble Mr. Justice (Retired) Pankaj Jaiswal as the Arbitrator and is seeking modification limited to appointment of Hon’ble Mr. Justice Vikramjeet Sen (Retired) as the Arbitrator. That, the Petitioner most respectfully submits that the concession as recorded in paragraph 10 of the order dated 12th August, 2021 was limited to the extent that the Respondent No. 1 had consented that an Arbitrator was required to be appointed but never consented to appointment of Hon’ble Justice (Retd.) Pankaj Jaiswal, Former Judge of the High Court of Judicature at Allahabad, Uttar Pradesh. In fact, the Counsel for Applicant had sought time to place on record the order dated 2nd August, 2021 passed by the Coordinate Bench of this Hon’ble Court.”
13. A bare reading of the aforesaid extract of Prayer clause as well as averments made in the present application, make it clear that respondent No.1 has not at all disputed that the matter is required to be referred to the Arbitrator. However, objection has been raised that respondent No.1 never agreed to the appointment of Mr. Justice (Retd.) Pankaj Jaiswal as Arbitrator and has now come before this Court with the prayer to appoint Mr. Justice (Retd.) Vikramajit Sen the sole Arbitrator on the ground that other disputes, which have a nexus with this case, have been referred to him for arbitration.
14. This Court finds that by filing this application, applicant/ respondent No.1 is infact trying to seek modification of order dated 12.08.2021 passed by this Court.
15. Pertinently, the aforesaid judgment was penned by me based on the averments made in the present petition and submission of the parties., which were noted in the judgement as under:-
“4. The dispute amongst the parties pertains to a piece of land admeasuring 73 acres [2,95,421 square meters] situated in Sector 128, Noida, District Gautam budha Nagar, Uttar Pradesh. According to petitioner, respondent No.2 is the sub-lessee of the land in question, which was mortgaged with respondent No.4 to obtain loan for respondent No.1. Petitioner entered into an Agreement to Sell dated 30.05.2021 with respondent Nos. 1 to 4 with respect to the land in question. However, some disputes arose between the parties and the execution of aforesaid Agreement to Sell dated 30.05.2021 came under clouds.
5. Petitioner claims that to amicably resolve the dispute between the parties, a legal notice dated 23.06.2021 was sent to respondents No.1 to 4 calling upon them to specifically perform the terms of the said Agreement, including completing the conditions precedent, which are under their control and also that petitioner was willing to complete the entire transaction at the earliest, subject to fulfilment of those precedent conditions. Thereafter, a few more communications were made between the parties but on 27.06.2021, petitioner received a communication from defendant No.4 terminating the Agreement due to delay in completion of the terms.
6. It is further claimed by petitioner, that defendant No.4 has entered into another agreement with third party in respect of sale of land in question, which is highly arbitrary and illegal. In a petition [OMP (I) (COMM) 209/2021] filed by the petitioner, this Court vide order dated 06.07.2021 directed the parties to maintain status quo in respect of land in question. In the meanwhile, respondents No.1 to 3 have issued notices dated 08.07.2021 to the petitioner and respondent No.4 invoking arbitration clause and appointing Arbitrators in terms of Clause 11 of the Agreement to Sell dated 30.05.2021. Petitioner claims to have replied to the aforesaid notice proposing names of Arbitrators, however, upon failure of respondents to respond to the said Notice, the present petition has been filed seeking appointment of sole arbitrator to adjudicate the disputes amongst the parties.”
16. The plea of respondent No.1 that no opportunity of hearing was afforded before passing the impugned judgment is out-rightly rejected by this Court, as this Court had first satisfied itself on the aspect of Section 11 (6) in this petition. Pertinently, before writing down the appointment, this Court had heard the learned counsel for the parties at length and specifically observed in the order that in view of Hon’ble Supreme Court’s decisions in Perkins Eastman Architects DPC & Anr. Vs. HSCC (India) Ltd. 2019 SCC OnLine SC 1517, unilateral appointment of Arbitrator was not permitted and therefore, the three names proposed by the petitioner could not have been given effect to by the respondent. This Court had also recorded that the Arbitrator either has to be appointed with the consent of the parties or by this Court and since, there was no consensus, learned counsel for the parties had requested for appointment of Arbitrator by this Court and so, the matter was reserved for pronouncement during the day and the appointment in question was made. Pertinently, neither any objection to the appointment of Arbitrator by this Court was raised nor any name was proposed by defendant No.1 at the relevant time. Therefore, this Court in its astuteness appointed an independent and impartial Arbitrator, subject to compliance of Section 12 of the Arbitration and Conciliation Act, 1996 before commencement of arbitration by the learned Arbitrator.
17. Relevantly, there is no iota of averment in the petition on behalf of the petitioner with regard to appointment Mr. Justice (Retd.) Vikramajit Sen as Arbitrator in ARB.P. Nos. 513/2021, 514/2021 and 516/2021 vide order dated 02.08.2021. However, since this has now been brought to the notice of this Court, I have given careful consideration as to whether disputes arising out of Agreement to Sell dated 30.05.2021 are required to be independently adjudicated by the Arbitrator so appointed by this Court or has to be referred to Mr. Justice (Retd.) Vikramajit Sen.
18. A two Judge Bench of the Hon’ble Supreme Court in DLF Home Developers Limited Vs. Rajapura Homes Private Limited and Another 2021 SCC OnLine SC 781 has expanded the jurisdiction of this Court for deciding petition under Section 11 of the Act and has held as under:-
“17. There is no gainsaying that by virtue of the Arbitration and Conciliation (Amendment) Act, 2015, by which Section 11 (6-A) was introduced, the earlier position of law as to the scope of interference by this Court at the stage of referral has been substantially restricted. It is also no more res integra that despite the subsequent omission of Section 11(6-A) by the Arbitration and Conciliation (Amendment) Act, 2019, the legislative intent behind thereto continues to be a guiding force for the Courts while examining an application under Section 11 of the Act.
18. The jurisdiction of this Court under Section 11 is primarily to find out whether there exists a written agreement between the parties for resolution of disputes through arbitration and whether the aggrieved party has made out a prima facie arbitrable case. The limited jurisdiction, however, does not denude this Court of its judicial function to look beyond the bare existence of an arbitration clause to cut the deadwood. A three-judge bench in Vidya Drolia (Supra), has eloquently clarified that this Court, with a view to prevent wastage of public and private resources, may conduct ‘prima facie review’ at the stage of reference to weed out any frivolous or vexatious claims……..
19. To say it differently, this Court or a High Court, as the case may be, are not expected to act mechanically merely to deliver a purported dispute raised by an applicant at the doors of the chosen Arbitrator. On the contrary, the Court(s) are obliged to apply their mind to the core preliminary issues, albeit, within the framework of Section 11(6-A) of the Act. Such a review, as already clarified by this Court, is not intended to usurp the jurisdiction of the Arbitral Tribunal but is aimed at streamlining the process of arbitration. Therefore, even when an arbitration agreement exists, it would not prevent the Court to decline a prayer for reference if the dispute in question does not correlate to the said agreement.”
19. In the light of aforesaid decision of Hon’ble Supreme Court, this Court has gone through the decisions of Coordinate Bench of this Court in OMP(I) (COMM) 209/2021 and OMP(I) (COMM) 213/2021, a copy of which was produced by defendant No.1 before this Court.
20. The first petition being OMP(I) (COMM) 209/2021 was filed under the provisions of Section 9 of Arbitration and Conciliation Act by petitioner herein i.e. DLF Home Developers Limited against respondents herein, wherein vide judgment dated 08.11.2021, a Coordinate Bench of this Court noted as under:-
“18. DLF claims that thereafter, in May 2021, Kadam and Indiabulls approached it for an absolute sale of the Sale Property instead of DLF acquiring the same indirectly by acquiring the shares of Kadam (the Pledged Shares). However, Indiabulls claims that the promoters of the Shipra Group had approached it with the proposition to sell the Sale Property to DLF and sought it’s No Objection Certificate (NOC) for the sale of the Sale Property to DLF. On 26.05.2021, Indiabulls issued a letter communicating its NOC for entering into an agreement to sell the Sale Property to DLF. It, however, stipulated that the same was subject to deposit of Rs.900 crores directly into its bank account within a period of 15 days from entering into the agreement to sell. Indiabulls further specified that the said no objection would be valid till 15.06.2021.
19. Thereafter, on 30.05.2021, the concerned parties entered into the ATS. In terms of the ATS, DLF agreed to purchase the Sale Property for a consideration of Rs.1,250/- crores subject to the terms and conditions as set out therein. In addition, DLF also agreed to pay all charges due to respondent no. 5, Yamuna Expressway Industrial Development Authority (hereinafter ‘YEIDA’). Out of the aforesaid consideration, Rs.1 crore was to be paid immediately and Rs.899 crores was to be paid directly to Indiabulls upon execution and registration of the sale deed in respect of the Sale Property. The remaining Rs.350 crores was to be paid by way of allotment of plots and/or built-up floors in the real estate project, which DLF proposed to develop on the Sale Property.
116. In the facts of the present case, this Court is of the view that the balance of convenience lies in favour of DLF. DLF is a developer and intends to develop the Sale Property. The entire transaction between the parties as recorded in the ATS is premised on the basis that DLF would use the Sale Property for development of its real estate project. Insofar as Indiabulls is concerned, concededly, it is a money lender and its interest is essentially to recover the loans along with interest as claimed by it. Thus, as far as Indiabulls is concerned, it can always be compensated in terms of money. There is no dispute that Kadam is a part of the Shipra Group of entities and admittedly, had mortgaged the Sale Property with Indiabulls to secure the repayment obligations of the Borrowers. The Borrowers claim that Indiabulls had agreed to accept the consideration payable by DLF under the ATS as full and final settlement of its claims. Plainly, if Kadam and the Borrowers prevail in their case that the dues owed to Indiabulls were fully settled, they would stand discharged of their liability on Indiabulls receiving the consideration as provided under the ATS. However, if they fail in this case, the Borrowers would continue to be liable to discharge their dues. Insofar as Kadam is concerned, Kadam is not one of the Borrowers and its liability is limited to the collateral provided by it for securing the debts owed to Indiabulls, that
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is, the Sale Property. ” 21. Further, in another petition being OMP (I) (COMM) 213/2021, respondent No.1 herein i.e. Shipra Estate Limited preferred against respondent No.4-India Bulls, the Coordinate Bench vide judgment dated 08.11.2021 held as under:- “53. The issue whether Indiabulls had agreed to accept the consideration for the Property in terms of the Agreement to Sell dated 30.05.2021 as full and final settlement of all dues is also a contentious issue that is required to be adjudicated by the Arbitral Tribunal.” 22. The afore-noted observations in OMP(I) (COMM) 209/2021 and OMP (I) (COMM) 213/2021 clearly shows that the property in question is connected to the issues in the said petitions. It is also established that the Agreement to Sell in question affects the rights of the parties in the present petition. 23. It is not disputed that order appointing Mr. Justice (Retd.) Pankaj Jaiswal as Arbitrator was passed on the day when the present petition was filed before this Court. It is also not disputed that the counsel for respondents did not oppose to the appointment of Arbitrator by this Court. But the fact remains that prior to passing of order dated 12.08.2021 by this Court, a Coordinate Bench of this Court in [ARB.P. 513, 514 & 516 of 2021] had appointed Mr. Justice (Retd.) Vikramajit Sen sole Arbitrator and the said fact was not mentioned in the petition. Had this fact been brought in the knowledge of this Court by counsel for the parties, this Court would have referred this petition to the same Arbitral Tribunal. However, without commenting on the merits of the disputes between the parties, in the considered opinion of this Court it would be just and proper if the disputes are referred to the Arbitral Tribunal, who is already ceased of the related matters. 24. In view of aforesaid, the present application is allowed. Accordingly, Mr. Justice (Retd.) Vikramajit Sen is appointed Arbitrator in this case. 25. The record of arbitral tribunal before Mr. Justice (Retd.) Pankaj Jaiswal be sent to the learned Arbitrator. 26. With aforesaid directions, the present application is disposed of.