Sanjeev Sharma v. Rajesh Anand

ORDER

17.11.2011

¶1Invoking an arbitration clause in a construction agreement entered into betrveen the parties on 9th October 2009, the Petitioner, a civil contractor has filed this petition under Section 11(6) of the Arbitration and Conciliation Act, 1996 seeking the appointment of an arbitrator.

2.In response to the notice issued to him, the Respondent denies having received any notice of invocation of an arbitration clause purportedly sent by the Petitioner on 21't October 2010 and 11th January 20LI. Additionally it is pointed out that the Petitioner filed Suit No. 154 of 2010 in the Court of the Senior Civil Judge, Delhi for a perpetual injunction and specific performance of the agreement dated 9th October 2009. The said suit came to be dismissed for default on 16th December 20I0.It appears that thereafter the Petitioner on 27th December 2010 filed an application seeking restoration of the suit. Additionally, the Petitioner filed an oh Arb. P No. 50 of 2011 Pbge t of 3 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. application 22nd February 20lI seeking to amend the plaint even without the suit being restored. However on 22"d February 20lI when the restoration application was listed, the learned Senior Civil Judge noticed that the Petitioner had not taken steps pursuant to the notice issued in the restoration application. Consequently, the restoration application has itself been dismissed on 2nd February 20II.

¶3This Court finds that all the above averments concerning the Petitioner's suit for injunction and specific perforrnance being already dismissed in default, and the application for restoration of the said suit also being dismissed for non-prosecution are borne out by the documents placed on record in these proceedings. The Petitioner has only vaguely mentioned in para 7(ix) of the present petition that "the applicant was compel (sic'compelted') to filed (sic'file') a criminal complaint under Section 138 of NI Act and a civil suit forperpetual injunction to restrain the respondent from selling the property to the third party and both the matters are pending in the Saket Court, New Delhi". The Petitioner has suppressed the fact that the suit was dismissed for default on 16th December 2010 after which the Petitioner sought its restoration the application for which was, Petitioner, dismissed by the 2nd February 2011. This was on 14th February 20IL Arb. P No.50 of 2011 in the presence of the counsel for the learned Civil Judge for non-prosecution on prior to the filing of the present application l. Pnge2of3

¶4Apart from there being suppression of material facts in the present petition, it also appears that the Petitioner is precluded from raising a fresh claim by invoking the arbitration clause after having unsuccessfully pursued such remedy by way of a civil suit.

¶5Consequently, there is no merit in this arbitration petition, and it is dismissed'as such. NOVEMBER L7,20ll akg ,\ -l,> I\i1-MI]RALIDHAR, S. J. Arb. P No. 50 of 2011 Page3 of3

* #9 + IN TIIE IIIGIT COI]RT OF DELHI AT NEW DELHI ARB.P. 'OI}OLI SANJEEV SFIARMA .... Petitioner Through: Mr. Devinder Chowdhury, Advocate. VETSUS RAJESH ANAND ..... Respondent Through: Mr. Lalit Bhardwaj and Mr. Rajesh Saxena, Advocates. CORAM: JUSTICE S. MI]RALIDHAR