$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ ARB.P. 762/2023
ADITYA BIRLA FINANCE LIMITED ..... Petitioner
Through: Mr. Vidur Sikka, Adv.
Versus
RAKSHANA SPINTEX & ORS. ..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
O R D E R
% 31.01.2024
1. This is a petition seeking appointment of the Sole Arbitrator as per the
Clause 11.8 of the Loan/Facility Agreement dated 16.09.2022. The said
clause reads as under:-
“ 11.8 DISPUTE RESOLUTION
All claims or disputes arising out of or in relation to this
Agreement shall be settled by arbitration. The arbitration tribunal
shall consist of a sole arbitrator to be appointed by the Lender.
All parties to this Agreement hereby expressly consent to the
Lender being the sole appointing authority. Any vacancy created
in the arbitration tribunal, for any reason whatsoever, shall also
be filled only by the Lender acting as the sole appointing
authority. The place of arbitration of arbitration shall be Delhi,
Parties agree that the courts in Delhi shall have the exclusive
jurisdiction to exercise all powers under the Arbitration and
Conciliation Act, 1996. Notwithstanding anything contained
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hereinabove, in the event the legal status of the Lander changes or
in the event of the law being made or amended so as to bring the
Lender under The Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (the "DRT Act"), to Lender proceed to
recover dues from the Saller under the DRT Act, the arbitration
provisions hereinbefore contained shall, at the option of the
Lender, cease to have any effect and if arbitration proceedings
are commenced but no arbitral award is made, then at the option
of the Lender such proceedings shall stand terminated and the
mandate of the arbitrator shall come to an end from the date of
the making of the law or the date when amendment becomes
effective or the date when the Lender exercises the option of
terminating the mandate of arbitrator, as the case may be.
Provided that neither a change in the legal status of the Lender
nor a change in law as referred to in this sub paragraph above,
will result invading an existing award passed by an arbitral
tribunal constituted pursuant to the provisions of this
Agreement.”
2. As the respondents failed to repay the loan amount despite the recall
notice dated 01.04.2023, the petitioner invoked the arbitration clause and
thereafter filed the present petition.
3. The notice has been issued in the petition vide order dated
03.08.2023.On the last date of hearing, the petitioner was required to take
fresh steps to serve the notice.
4. The petitioner has served the respondent through speed post service
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and through whatsapp.
5. Mr. Sikka, learned counsel for the petitioner has drawn my attention
to a whatsapp message sent on mobile No. 8098889000, wherein in response
to the notice the respondent has stated “Sir, I told to our advocate”.
6. For the said reasons, I am inclined to proceed ex parte as the
respondents have been served and despite service there is no appearance
even today.
7. For the reasons noted above, the petition is allowed. Since the parties
are still having disputes between them, the following directions are issued:-
vi) Mr. Harshit Aggarwal, (Advocate) (Mob. No.
9811026362) is appointed as a Sole Arbitrator to adjudicate
the disputes between the parties.
vii) The arbitration will be held under the aegis of the
Delhi International Arbitration Centre, Delhi High Court,
Sher Shah Road, New Delhi hereinafter, referred to as the
‘DIAC’). The remuneration of the learned Arbitrator shall be
in terms of the Fourth Schedule of the Arbitration &
Conciliation Act, 1996.
viii) The learned Arbitrator is requested to furnish a
declaration in terms of Section 12 of the Act prior to entering
into the reference.
ix) It is made clear that all the rights and contentions of
the parties, including as to the arbitrability of any of the
claim, any other preliminary objection, as well as claims on
merits of the dispute of either of the parties, are left open for
adjudication by the learned arbitrator.
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x) The parties shall approach the learned Arbitrator
within two weeks from today.
8. The petition is allowed and disposed of in the aforesaid terms.
JASMEET SINGH, J
JANUARY 31, 2024/NG
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The Order is downloaded from the DHC Server on 13/12/2024 at 14:55:32