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2007 DIGILAW 1810 (DEL)

Khosla Sports Industries v. Har Mohinder Bhatia

2007-10-03

ARUNA SURESH

body2007
Judgment ARUNA SURESH, J. (Oral) The present application has been filed under Section 11(6) of the Arbitration and Conciliation Act,1996 (hereinafter referred to as the Act) for appointment of an Arbitrator as a dispute has arisen inter se the parties in terms of arbitration clause contained in commission agreement dated 24.5.78 wherein Shri Shyam Sunder Gosain has been named as sole arbitrator to be so appointed. Mr. Shyam Sunder Gosain when appointed as Arbitrator and was requested to enter into reference and adjudicate upon the dispute inter se the parties, vide his letter dated 21.12.2005 showed his disinclination to adjudicate upon the dispute as referred to him vide letter dated 14.4.2005, due to his personal reasons and other exigencies of work. It was on his refusal that the present application has been filed for appointment of an arbitrator by the Court. .2. Respondent has disputed the nature of document which has been titled as Commission Agreement containing the arbitration clause and has alleged that in fact it is a lease agreement or a rent agreement inter se the parties. To emphasis this he has referred to modification of the agreement vide which commission was fixed at Rs.600/-per month to be paid before 5th of every month in advance. The Commission Agreement has a clause which indicates that initially this agreement was for 11 months only which is deemed to have been extended if the petitioner did not terminate the agreement by giving one months notice. There is a receipt dated 17.5.1996 issued by Mr.V.Khosla, partner of the petitioner which clearly indicates that the payment was being made towards rent and the payment as detailed in this receipt upto 31.1.1996 was payment of rent which was acknowledged by the petitioner by way of this receipt. Therefore, according to the respondent it being a rent agreement, it is only the Rent Controller under the Delhi Rent Control Act, who has the power to adjudicate upon the dispute or the claim of the petitioner seeking ejectment of the respondent from the suit property. 3. Therefore, according to the respondent it being a rent agreement, it is only the Rent Controller under the Delhi Rent Control Act, who has the power to adjudicate upon the dispute or the claim of the petitioner seeking ejectment of the respondent from the suit property. 3. Learned counsel for the petitioner has submitted that in view of arbitration clause contained in the Commission Agreement, even if the plea of the respondent is accepted as correct, the matter has to be referred to the arbitrator to be appointed by this Court, who is competent to decide nature of the agreement executed inter se the parties and decide about his jurisdiction. ] 4. I agree with the contentions of learned counsel for the petitioner. On the face of it the document is titled as Commission Agreement and modification dated 4.6.78 is to the said Commission Agreement dated 24.5.78. It is not disputed that Commission Agreement contains an arbitration clause which reads as follows:- ?If there shall be any dispute between the parties then the decision of Mr.Sham Sunder Gosain of B-215, Naraina Industrial Area will be the final.? 5. Even the sole Arbitrator to be so appointed is named in this clause. Respondent does not dispute that petitioner had served notice dated 3.12.2004 In fact this notice was duly replied by the respondent on 13.12.2004 This reply suggests that in a suit filed by the respondent in the District Courts, petitioner has filed an application under Section 8 of the Act invoking the arbitration clause for referring the dispute between the parties to arbitration in terms of the said arbitration clause contained in the agreement dated 24.5.78. Therefore, the respondent does acknowledge that there is an arbitration clause in the Commission Agreement executed inter se the parties. .6. Under these circumstances this Court cannot adjudicate upon the nature of agreement inter se the parties to decide whether the said agreement is a rent agreement or a Commission Agreement and whether it is the Rent Controller under the Delhi Rent Control Act who has the power to adjudicate upon the dispute regarding ejectment of the respondent from the suit property. It is for the Arbitrator to decide whether he has the jurisdiction to adjudicate upon the dispute inter se the parties or parties are governed by the provisions of the Delhi Rent Control Act. It is for the Arbitrator to decide whether he has the jurisdiction to adjudicate upon the dispute inter se the parties or parties are governed by the provisions of the Delhi Rent Control Act. If the Arbitrator is of the view that the parties are governed by the provisions of the Delhi Rent Control Act, then he can so direct the parties to have recourse to law. 7. Hence the present petition is allowed. I hereby appoint Shri A.K. Garg, Addl. Distt. and Sessions Judge (Retd.), Flat No.30, Navyug Apartments, Sector-9, Rohini, New Delhi, as the Arbitrator in this case. His fees is fixed at Rs.40,000/- to be borne by the petitioner. Copy of the order be sent to the Arbitrator for information.