Delhi High Court - OrdersDe Lage Landen Financial Services India ... vs Aadhiriyaa Medical Solutions Private ... on 7 May, 2021Author:Sanjeev NarulaBench:Sanjeev Narula$~2\n*      IN THE HIGH COURT OF DELHI AT NEW DELHI\n+      ARB.P. 363/2021\n       DE LAGE LANDEN FINANCIAL SERVICES INDIA PVT. LTD.\n                                                                 ..... Petitioner\n                         Through:     Mr. Anupam Singh and Ms. Tanya\n                                      Tikiya, Advocates.\n\n                         versus\n\n       AADHIRIYAA MEDICAL SOLUTIONS PRIVATE LIMITED &\n       ORS.                                                   ..... Respondents\n                         Through:     Ms. Anzu Varkey and Mr. Riteish\n                                      Patil, Advocates for Respondent Nos.\n                                      1 to 3.\n\n       CORAM:\n       HON'BLE MR. JUSTICE SANJEEV NARULA\n               ORDER%              07.05.2021\n\n[VIA VIDEO CONFERENCING]1. The present petition underSection 11of the Arbitration and Conciliation\nAct, 1996 [hereinafter referred to as the 'Act'] seeks appointment of an\nArbitral Tribunal. The Arbitration Clause is contained in the documents\n[hereinafter referred to as 'Agreements'] given as under: -(i) Loan and Hypothecation Agreement dated 10th September, 2018;(ii) Two separate deeds of Guarantee Agreement dated 10th September,\n      2018 executed between Petitioner and Respondent Nos. 2 and 3.2. The Arbitration Clause in the said agreements are similar and for the sakeARB.P. 363/2021                                                  Page 1 of 4of brevity, the Arbitration Agreement [Clause 53] in the Loan and\nHypothecation Agreement is reproduced as under: -"53. This Agreement shall be governed by, and construed in\n          accordance with, the laws of India. All disputes, differences and/or\n          claims arising out of these presents or in any way touching or\n          concerning the same or as to construction, meaning or effect or as to\n          the rights and liabilities of the Parties hereto shall be settled through\n          arbitration to be held in accordance with the provisions of theArbitration and Conciliation Act, 1996as amended from time to time\n          or any other or further Act of the Parliament that may be enacted in\n          relation to arbitration proceedings. Arbitration proceedings as\n          aforesaid between the Parties shall be referred to a sole arbitrator to\n          be appointed by the Lender at its absolute discretion. In the event of\n          death, refusal, neglect, inability or incapability of a person so\n          nominated/appointed to act as the sole arbitrator, the Lender may at\n          its absolute discretion, appoint another person instead as the new\n          arbitrator. The arbitration proceedings shall be conducted in the\n          English language. The award passed by the arbitrator shall be final\n          and binding on all the Parties concerned. The costs of arbitration\n          shall be borne by the Party(ies) as determined in the arbitration\n          award. The arbitration proceedings, at the Lender's sole discretion,\n          shall be held either in Delhi/National Capital Region or Mumbai. The\n          courts in Delhi/National Capital Region or Mumbai at the Lender's\n          sole discretion, shall have exclusive jurisdiction to settle any disputes\n          which may arise out of or in connection with this Agreement and the\n          Borrower irrevocably submits to the jurisdiction of those courts."3. Under the afore-noted Loan and Hypothecation Agreement, the Petitioner\nhad given a loan of Rs. 9,70,000/- to Respondent No.1. Respondents Nos. 2\nand 3 stood as guarantors in favour of the Petitioner for the loan extended to\nRespondent No. 1.4. The Petitioner contends that the Respondents have breached the terms and\nconditions of the Agreements as they have not adhered to the repayment\nschedule and accordingly, seeks appointment of an Arbitral Tribunal for\nadjudication of the disputes. Although in terms of the Arbitration Clause, the\nPetitioner- Lender has the right to appoint the Arbitrator, however, in viewARB.P. 363/2021                                                            Page 2 of 4of the decision of the Supreme Court inPerkins Eastman Architects DPC\nand Ors. v. HSCC (India) Ltd.1, it is prayed that the Court may appoint an\nindependent Sole Arbitrator.5. Mr. Riteish Patil, learned counsel for the Respondent, on the other hand,\nseeks time to file a reply to the present petition. However, when he was\ncalled upon to state the objection to the Petition, he fairly submitted that the\nexistence of the afore-noted Agreements is not in dispute. On merits, the\nRespondents denies and refutes the contentions/ claims of the Petitioner.6. In view of the above, since the existence of the Arbitration Agreement is\nnot in dispute, the petition deserves to be allowed. The contentions of the\nRespondents, with respect to the merits of the case, are not to be examined\nin the present proceedings and they shall be free to raise the same before the\nlearned Arbitrator.7. Since all the three Agreements contained an Arbitration Clause.\nAccordingly, Mr. J.R. Aryan (Retd.) former District Judge [Contact No.:+91 9958697034] is appointed as the common Sole Arbitrator to adjudicate\nthe disputes arising between the Petitioner and Respondent Nos. 1 to 3 under\nthe: (i) Loan and Hypothecation Agreement dated 10 th September, 2018; and(ii) two separate Deeds of Guarantee Agreement both dated 10th September,\n2018.8. The parties are directed to appear before the learned Arbitrator as and\nwhen notified. This is subject to the Arbitrator making the necessary\ndisclosure underSection 12(1)of the Act and not being ineligible underSection 12(5)of the Act.9. The learned Arbitrator will be entitled to charge his fees in terms of the1AIR 2020 SC 59.ARB.P. 363/2021                                                   Page 3 of 4provisions of the Fourth Schedule appended to the Act.10. In view of the above, the present petition is allowed and stands disposed\nof.SANJEEV NARULA, J\n\nMAY 07, 2021\nvARB.P. 363/2021                                                Page 4 of 4