Delhi High Court: Petitioner had filed the petition under Section 11 of the Arbitration and Conciliation Act, 1996 (‘the Act’) for appointment of an arbitrator to adjudicate disputes between the parties under the lease agreement dated 21-03-2018 (‘the agreement’). Prateek Jalan, J., opined that although service by e-mail and WhatsApp was sufficient, it might also be noted in the agreement itself that respondent’s address for the purpose of correspondence was the same address at which service was attempted. The Court opined that considering that service upon the respondents had been duly affected by e-mail and WhatsApp on 20-02-2024, it was not necessary to await the respondents’ appearance any further. Thus, the Court opined that prima facie there existed an arbitration agreement between the parties and the arbitration proceedings had been duly invoked against Respondents 1 and 2. Accordingly, the Court referred the disputes between the parties to arbitration under the aegis of Delhi International Arbitration Centre, Shershah Road, New Delhi (‘DIAC’). The Court requested DIAC to nominate arbitrator from its panel, and the arbitration proceedings would be governed by the Rules of DIAC, including the remuneration of the arbitrator.
Background
In the present case, parties to the agreement were petitioner and Respondent 1, a partnership firm represented by Respondent 2. Respondent 3 was stated to be the other partner of Respondent 1, but petitioner stated that no claim was sought to be agitated against it. The agreement was for lease of vehicles by Respondent 1 from petitioner and it contained an arbitration clause which provided for adjudication of disputes by arbitration at New Delhi as per the Rules of Delhi International Arbitration Centre. Further, under the same clause, Courts in New Delhi had also been vested with exclusive jurisdiction under the agreement.
Subsequently, disputes arose between the parties, and petitioner invoked arbitration by a legal notice dated 31-12-2022 addressed to Respondents 1 and 2. Petitioner proposed to respondent, names of three persons to be appointed as the arbitrator but there was no response from respondents. Thereafter, notice was issued on 04-12-2023 and directions were given from time to time regarding completion of service.
By order dated 12-01-2024, petitioner was directed to serve respondents by e-mail and WhatsApp at the addresses and phone numbers mentioned in the agreement. Petitioner filed an affidavit of service dated 22-02-2024, which demonstrated that e-mail and WhatsApp service was affected on 20-02-2024. Subsequently, by order dated 06-03-2024, petitioner was also permitted to serve the respondents through registered post and speed post at the address mentioned in the memo of the parties. However, the Joint Registrar had recorded that in the order dated 04-04-2024, as per Speed Post tracking report valid service had not been affected.
Analysis, Law, and Decision
The Court opined that it was nonetheless clear that respondents had been duly served by e-mail and WhatsApp. The Court further observed that e-mail address and mobile number of respondents was mentioned in the agreement itself and the affidavit of service dated 28-03-2024, affirmed by petitioner’s authorized representative demonstrated service by both these modes.
The Court opined that although service by e-mail and WhatsApp was sufficient, it might also be noted in the agreement itself that respondent’s address for the purpose of correspondence was the same address at which service was attempted. The notice invoking arbitration sent to the same address was reported to be delivered, but in the speed post report by which petition was sent to the address, it was stated that no such person was available at the address.
The Court opined that considering that service upon the respondents had been duly affected by e-mail and WhatsApp on 20-02-2024, it was not necessary to await the respondents’ appearance any further. Thus, the Court opined that prima facie there existed an arbitration agreement between the parties and the arbitration proceedings had been duly invoked against Respondents 1 and 2. Accordingly, the Court referred the disputes between the parties to arbitration under the aegis of DIAC. The Court requested DIAC to nominate arbitrator from its panel, and the arbitration proceedings would be governed by the Rules of DIAC, including the remuneration of the arbitrator. The arbitrator was requested to furnish a declaration under Section 12 of the Act, prior to entering upon the reference.
The Court clarified that as the respondents had not entered appearance in these proceedings, they would be duly served in accordance with the DIAC Rules, in the arbitration proceedings also. Further, all the rights and contention of the parties on maintainability of the claims and on merits, were left open for adjudication by the arbitrator.
[Lease Plan India (P) Ltd. v. Rudraksh Pharma Distributor, 2024 SCC OnLine Del 2687, Order dated 10-04-2024]
Advocates who appeared in this case :
For the Petitioner: Akhilesh Pradhan, Advocate.
Buy Arbitration and Conciliation Act, 1996 HERE
