Joginder Singh Dhaiya v. M.A Tarde Thr Lrs

NAVIN CHAWLA, J DECEMBER 22, 2017 Sd

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + OMP 370/2014 Reserved on: 24th October, 2017 Date of decision: 22nd December, 2017 JOGINDER SINGH DHAIYA ..... Petitioner Through: Mr.J.P.Sengh, Sr.Adv. with Mr.Aditya Nayyar, Mr.Anish Gupta, Ms.Mansha Mehta, Ms.Vaishali Tanwar and Ms.Mrigna Shekhar, Advs. Versus M.A TARDE THR LRS ..... Respondent Through: Mr.Vikas Mehta, Mr.C.V.Atre, Mr.Rajat Sehgal and Mr.Mukul Atre, Advs. CORAM: HON'BLE MR. JUSTICE NAVIN CHAWLA 1. The petitioner, by this petition, has challenged the Award dated 17th February, 2014 passed by the Sole Arbitrator whereby the application for substitution of legal representative of Mr. M.A. Tarde filed by the petitioner under Section 40 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the 'Act') was dismissed as being time barred and the arbitration proceedings were held to have abated. 2. I, at the outset, quote the relevant finding of the arbitrator in the impugned award/order: Page 2 "16. That there is no dispute regarding legal proposition as provided in Section 19 of the Act that arbitral tribunal shall not be bound by the code of CPC. Provision contained in section 43 of the Act cannot be ignored, which provides that Limitation Act, 1963 shall apply to arbitration as it applies to proceedings in court. Article 120 of the Limitation Act provides that LRs are to be substituted within 90 days of death of party, as the case may be. In this case, claimant slept over the matter for long time and did not substitute LRs. Hon'ble High Court of Delhi also observed in order dated 01.8.2013 that respondent is rightly aggrieved for not filing the claim before me by the claimant. In view of the above discussions, I am of the opinion that the application U/s 40 of the Act is hopelessly time barred and arbitration proceedings stand abated, when arbitration proceedings stand abated the injunction matter need not be heard and there is no need to enter reference to proceed further. Signed copy of the order be given to both the parties. File be kept in the office and will be sent whenever it is submitted by any Hon'ble Court." 3. The dispute between the parties arose out of Agreement to Sell dated 12th October, 2006 between the petitioner and Late Shri M.A. Tarde, the predecessor of the respondents. 4. The petitioner invoked the Arbitration Agreement/Clause by notice dated 13th March, 2007 and appointed the Sole Arbitrator, who entered upon reference and vide letter dated 9th April, 2007 called upon the parties to appear before him. 5. The proceedings continued before the appointed Arbitrator, however, the same are not relevant for the purpose of present Page 3 adjudication and are not being referred to in detail. Suffice it to say that it is submitted by the petitioner that he had filed a Statement of Claim before the Arbitrator on 25th October, 2007. 6. The appointed Arbitrator recused himself from the arbitration proceedings on 25th February, 2008. The petitioner, therefore, filed an application under Section 14 and 15 of the Act before this Court being OMP No. 283/08, seeking appointment of a substitute Sole Arbitrator. An application under Section 9 of the Act, being OMP No. 381/08, seeking an interim injunction against Mr. Tarde was also filed. 7. This Court passed an ad-interim order dated 23rd July, 2008 restraining Mr. Tarde from creating any third party interest in respect of the land for which payment had been received from the petitioner. This order was confirmed on 18th February, 2009. 8. This Court, by a separate order dated 18th February, 2009 passed in OMP No. 283/2008, appointed the present Sole Arbitrator. It was directed that "he shall enter the reference as and when claim is filed before him and he shall endeavor to give the award as early as possible". 9. It is the case of the petitioner that he tried to obtain the original Statement of Claim and the documents filed before the previous arbitrator, however, in spite of efforts, he