Manish Anand v. Fiitjee Ltd

NAVIN CHAWLA, J FEBRUARY 21, 2018/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Reserved on: 8th February, 2018 Date of decision: 21st February , 2018 + ARB.P. 654/2017 & I.A. No.11965/2017 ARB.P. 655/2017 & I.A. No.11967/2017 ARB.P. 656/2017 & I.A. No.11970/2017 ARB.P. 657/2017 & I.A. No.11972/2017 ARB.P. 658/2017 & I.A. No.11974/2017 ARB.P. 659/2017 & I.A. No.11976/2017 ARB.P. 814/2017 & I.A. No.15007/2017 MANISH ANAND ..... Petitioner MANISH SINHA ..... Petitioner BIRENDRA KUMAR ..... Petitioner GAURAV KUMAR ..... Petitioner MURLIDHAR ..... Petitioner VIKAS GUPTA ..... Petitioner NARAYAN CHANDRA BISHAL ..... Petitioner Through: Mr.Manish Sharma, Ms.Mayuri Raghuvanshi, Mr.Vyom Raghuvanshi and Mr.Ninad Dogra, Advs. versus FIITJEE LTD ..... Respondent Through Mr.Mukesh M.Goel and Ms.Arti Rawat, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. These petitions under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') have been filed by the petitioner challenging the appointment of the Arbitrator by the respondent unilaterally. Page 2 2. The Arbitration Agreement between the parties is contained in Clause 21(a) of the "Supplementary Rules for the Employees of Fiitjee", which is reproduced herein under:- "21(a) All disputes and differences of any nature with regard to FIITJEE service manual and the interpretation & adjudication of clauses and claims respectively shall be referred to the Sole Arbitrator appointed by the company i.e. FIITJEE. The arbitration proceedings shall be conducted in accordance with the provisions of the Arbitration and Conciliation Act 1996 and statutory modifications thereof and rules made thereunder. The award of Arbitrator shall be final and binding on both the parties. The award of the Arbitrator shall be final and binding on every matter arising hereunder. It is further agreed that in spite of the fact that the Sole Arbitrator may be known to any of the Directors or shareholders and that he may have been dealing with the company or had occasion to deal with any matter of this agreement shall not disqualify him. Even if the Arbitrator may have expressed opinion in similar matter earlier shall also not render him disqualified. The venue of the arbitration shall be Delhi / New Delhi only." 3. It is the contention of the petitioner that the Arbitration Agreement, so far as it vests power in the respondent to unilaterally appoint a Sole Arbitrator for adjudicating the disputes between the parties is unenforceable and in valid. I have already rejected the said contention in judgment pronounced today in OMP (T) (COMM) 101/2017 Bhayana Builders Pvt. Ltd. vs. Oriental Structural Engineers Pvt. Ltd. and for the reasons recorded therein I am unable to agree with the submissions made by the petitioner. 4. It is further contended by the counsel for the petitioner that the Arbitrator so appointed by the respondent has not given his disclosure in Page 3 terms of Section 12(1) of the Act and therefore, he is de jure ineligible to proceed with the arbitration. 5. Section 12(1) of the Act is reproduced herein under:- "12. Grounds for challenge.— [(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances,— (a) such as the existence either direct or indirect, of any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to his independence or impartiality; and (b) which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. Explanation 1.—The grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Explanatio