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2023 Supreme(Del) 3043
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manmohan, Mini Pushkarna, JJ.
Rajesh Jain Proprietor, M/s Pioneer Paper Agency – Appellant
Versus
M/s Shiv Shakti Impex – Respondent
FAO (COMM) 183 of 2022 & CM APPLs.51880-51881 of 2022
Decided On : 21-07-2023
Ms.Kirti Mewar, Advocate, for the Appellant.
None, for the Respondent.
The court emphasized the importance of upholding arbitration agreements and the cautious approach required in disturbing confirmed arbitral awards.
Headnote:
Arbitration Agreement - Dispute between members of an association - Taipack Limited and Others Vs. Ram Kishor Nagarmal, 2007 (3) ARBLR 402 (Delhi) - T. P. Daver vs. Lodge Victoria No. 363, S. C. Belgaum & Ors., AIR 1963 SC 1144 - M/s. Mangalwar Filling Station v. Indian Oil Corporation Limited and Others, 2021 SCC OnLine Del 3646
Fact of the Case:
The appeal challenged an order and an arbitral award, claiming absence of an arbitration agreement and membership in the Paper Merchants Association.
Finding of the Court:
The court found that the dispute between members of the association was amenable to arbitration as per the association's regulations. It also noted the settled position of law that confirmed arbitral awards are not easily disturbed.
Issues: Dispute over arbitration agreement and membership in the association.
Ratio Decidendi: The court held that the dispute between members of the association was amenable to arbitration as per the association's regulations and confirmed arbitral awards are not easily disturbed.
Final Decision: The appeal was dismissed.
JUDGMENT
Manmohan, J. (Oral)
CM APPL.51881/2022
1. Keeping in view the averments in the application, the delay in re- filing the present appeal is condoned.
2. Accordingly, the application stands disposed of.
CM APPL.51880/2022 (exemption)
3. Allowed, subject to all just exceptions.
4. Accordingly, the application stands disposed of.
FAO (COMM) 183/2022
5. Present appeal has been filed challenging the impugned order dated 6th June, 2022 passed by the learned ADJ-09, Central, Tis Hazari District Court, Delhi in ARBTN No. 347/2017, `M/s Pioneer Paper Agency vs. Shiv Shakti Impex and Another' wherein the Appellant also seeks quashing of impugned Arbitral Award dated 16th September, 2016 passed by the learned Sole Arbitrator in `M/s Shiv Shakti Impex Vs. M/s Pioneer Paper Agency.'
6. Learned counsel for the Appellant states that the learned Sole Arbitrator and the Trial Court have failed to appreciate that there was no arbitration agreement between the parties and therefore, the learned Arbitrator had no jurisdiction to adjudicate the dispute between the parties. She further states that the Trial Court failed to verify whether the Appellant is a member of the Paper Merchants Association (Regd.) or not.
7. Learned counsel for the Appellant has also relied upon Taipack Limited and Others Vs. Ram Kishor Nagarmal, 2007 (3) ARBLR 402 (Delhi), in order to contend absence of arbitration agreement in the instant case. Consequently, she prays that the impugned order and impugned award be set aside.
8. In response to a specific query from this Court, the Appellant has filed an affidavit of compliance dated 31st January, 2023 in which it is stated that prior to 2011, M/s Pioneer Paper Agency was a partnership firm and it was that partnership firm which was a member of Paper Merchants Association. In the affidavit, it has been averred that the partnership firm-M/s Pioneer Paper Agency, ceased to exist w.e.f. 01st April, 2011 and thereafter, the Appellant neither filed new membership for the proprietorship firm nor filed any other form or signed any Agreement/Rules and Regulations of Paper Merchants Association (regd.) Delhi.
9. In the affidavit of compliance, it has also been averred that even though the last form for membership of the Paper Merchants Association was filed in the year 2010 on behalf of the partnership firm, yet the membership registration of the partnership is reflected in the members directory of Paper Merchants Association (regd.) Delhi, printed in the year 2017. The relevant page annexed with the said affidavit is reproduced hereinbelow:
[IMG]
10. From the directory, it is apparent that M/s Pioneer Paper Agency through Sh. Rajesh Kumar Jain is a member of Paper Merchants Association (regd.) Delhi. The name of the other partner is not mentioned in the directory. No correspondence with the Paper Merchants Association with regard to wrongful inclusion of M/s Pioneer Paper Agency in the members' directory 2017 has been enclosed. In any event this document and the corresponding issue should have been raised before the Arbitral Tribunal and the Trial Court.
11. It is pertinent to mention the impugned judgment (Paras 2 and 8) repeatedly records that both the parties (including the Appellant) had admitted being members of the Paper Merchants Association (regd.) Delhi. Consequently, the affidavit of compliance dated 31st January, 2013 filed by the Appellant, to put it mildly, inspires no confidence.
12. The judgment in the case of Taipack Limited and Others Vs. Ram Kishor Nagarmal (supra) offers no assistance to the Appellant as the same is clearly distinguishable. In the said case, a member of the Paper Merchants Association had initiated the arbitration proceedings against a party who was not a member of the said Association. The respondent in the said case had also relied upon terms printed on the reverse side of the purchase order for the supply of goods which provided for adjudication of all disputes to the jurisdicti
