P.L.Kalra v. Braham Dutt Saini

ORDER %

17.07.2013 CM APPL.10673/2013 (exemption) Allowed, subject to just exceptions. FAO (OS) 318/2013 The presentappeal is directedagainst the order of a learned Single Judge dated

31.05.13wherebythe applicationunderSection 11 (6) for appointmentof an Arbitratoris declined. The learned Single .ludge relied upon the conditionsof the contractand held that notice of arbitrationin accordancewith law had not been given by the appellant. The impugned order also relied upon the decision of the Court reported as Civtech EngineersPvt. Ltd. v. M.N. Securities(P) Ltd. (ArbitrationPetitionNo.93/2010). it is urged by theappellantthatthe learnedSingleJudgeoverlookedmaterialfacts involvingthat the notice in terms ofClause-14had not been issued. Me relied upon the letter dated 2.4.2011 and submittedthat a fair reading of the document would indicate that in lact that dispute had been referred to and the demand has to be reasonably construed to appointment an Arbitrator. 1he appellant had invoked the Arbitration clause contained in an agreement between the parties which led to appointmentof an Arbitratoron an earlier occasion. Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. a-- This culminated in an Award dated 23.11.2007 whereby the respondent was directed to vacatc the premises and also pay arrears of rent and damages for use and occupationof the premises till the date of their Award. The respondent preferred a Section 34 objection which was dismissed; his appeal too was unsuccessful. Concededly, the appellant had made a composite claim with regard to the relief of decree for possession and mesne profits/damages for use and occupation of the premises till payment. The Arbitrator, however, restricted the grant of damages till the date of the Award. The appellant at that stage could have articulated the grievance by preferring objections under Section 34 of the Arbitration and Conciliation Act. He, however, chose not to do so. The subsequent non-compliance of the Award and handing over of the possession after two years' delay which is sought to be highlighted as a subsequent cause of action, in the opinion of the Court, was a matter which could have been agitated under Section 34 proceedings,to claim mesnc profits till vacation of premises. Having regard to this position in law, the Court is of the view that the learned Single Judge's conclusionin rejecting the application for appointment of Arbitrator cannot be faulted. •"fhe appeal is accordingly dismissed. JULY 17, 2013 /vks/ S. RAVINDRA BHAT, J NAJMI WAZIRI,J

> -¥ $-19 IN nm HIGH COIJIIT OF DELHI AT NEW DELHI FAO (OS) 318/2013 CM APPL. 10673/2013 / P.L.KALRA Appellant Through; Mr. Neeraj .Iain, Advocate. versus BRAHAMDUTT SAINI Respondent Through: None. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI