Sudha Gupta v. Pnb Housing Finance Limited & Anr

NAVIN CHAWLA, J

FEBRUARY 21, 2018/rv

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP (T) (COMM) 104/2017 & IA No. 14671/2017 + ARB.P.682/2017 Reserved on: 08th February, 2018 Date of decision:21st February , 2018 SUDHA GUPTA ..... Petitioner Through Mr.Yakesh Anand and Mr.Nimit Mathur, Advs. (in both the petitions) Versus PNB HOUSING FINANCE LIMITED & ANR. ..... Respondents Through Mr.Ajay Uppal and Mr.Nishant Maidasani, Advs. (in both the petitions) CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. These petitions have been filed under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') (ARB.P. 682/2017) and under Section 14(2) read with Section 15(2) of the Act (OMP (T) (COMM) 104/2017). As they raise similar question of fact and law and are between the same parties, they are taken up together for disposal. 2. The primary contention of the petitioner is that the respondent cannot unilaterally proceed to appoint an Arbitrator for adjudicating the disputes that have arisen between the parties and such unilateral appointment shall be non-est and the Arbitrator so appointed would be de jure ineligible to act as an Arbitrator. Page 2 3. The Arbitration Agreement between the parties is contained in Article 10.9 of the "Loan Agreement for Fixed and Floating Loan" dated 23.02.2015 executed between the parties and is reproduced herein under:- "10.9 Arbitration Any and all disputes, claims, difference arising out of or in connection with this Agreement and the Schedule or the performance of this Agreement shall be settled by arbitration to be referred to a sole arbitrator to be appointed by the PNBHFL and the award thereupon shall be binding upon the Parties to this Agreement. The place of arbitration shall be in Delhi or any other place as arbitrator may decide, in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and any statutory amendments thereof. The proceeding of Arbitration Tribunal shall be conducted in English language. Each party has to bear cost of representing its case before the Arbitrator. Costs and charges of Arbitrator to be shared equally unless/otherwise provided for in the Award. The Borrower further agrees that all claims, difference and disputes, arising out of or in relation to dealings/transaction made in pursuant to this Agreement including any question of whether such dealing, transaction have been entered into or not, shall be subject to the exclusive jurisdiction of the courts at Delhi only." 4. It is the contention of the petitioner that the Arbitration Agreement, so far as it is authorizes the respondent alone to appoint a Sole Arbitrator for adjudication of the disputes, is unenforceable in view of Section 12(5) of the Act. I have rejected the said contention in my judgment pronounced today in OMP (T) (COMM) 101/2017, Bhayana Builders Pvt. Ltd. Vs. Oriental Structural Engineers Pvt. Ltd. and for the reasons stated therein, the said contention of the petitioner is rejected. 5. In the present case, even otherwise the contention of the petitioner was liable to be rejected. The petitioner, alongwith her husband had Page 3 availed a home purchase loan from the respondent under the above mentioned Agreement. The respondent, contending that the petitioner had defaulted in payment of the loan installments, vide its legal notice dated 09.03.2017 recalled the said loan, calling upon the petitioner to pay a sum of Rs. 1,16,03,068.58. The respondent thereafter filed an application under Section 9 of the Act being OMP (I) (COMM) 204/2017 before this Court praying for an ex-parte ad interim order restraining the petitioner from disposing of, selling, alienating, transferring or creating any encumbrance, charge or third party interest in any manner in respect to the property No.7, First Floor, Krishna Nagar, Jain Mandir, Shahdara, Delhi-110032 (hereinafter referred to as the 'Property'). 6. In the said petition, this Court vide its order dated 24.05.2017 passed an ad-interim order rest