Neutral Citation Number: 2023/DHC/001355

ARB.P.1221/2022

Page 1 of 14

$~32

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 22^nd February, 2023

+

ARB.P. 1221/2022

M/S FIITJEE LTD.

..... Petitioner

Through:

Ms.Revati

Gulati,

Ms.Diksha

Narula, Advs.

versus

ASHISH KHARE & ANR.

..... Respondents

Through:

Mr.Apoorva

Bhumesh

and

Ms.Madhavi Khare, Advs. for R-1.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)

1.

This petition has been filed under Section 11 of the Arbitration and

Conciliation Act, 1996 (hereinafter referred to as the „Act‟) seeking

appointment of an Arbitrator for adjudicating the disputes that have

arisen between the parties in relation to the employment of the

respondent no.1 with the petitioner as a faculty member in the

Department of Math on 17.04.2010.

2.

It is the case of the petitioner that the respondent no.1 was, during

his employment with the petitioner, transferred to M/s USA

UNIVQUEST with effect from 01.05.2016. The said M/s USA

UNIVQUEST amalgamated with the petitioner Company on 03.04.2019.

In the meantime, the respondent no.1 left the services of the petitioner on

05.02.2018.

Digitally Signed By:SUNIL

Signing Date:28.02.2023

14:56:45

Signature Not Verified

Neutral Citation Number: 2023/DHC/001355

ARB.P.1221/2022

Page 2 of 14

3.

It is the case of the petitioner that the respondent no.1 thereafter

co-founded a competitor academy namely „Venkateshwara Academy‟

and started working there as Founder, Mentor and Director. The

petitioner claims that the same was in violation of the Service Rules.

4.

The petitioner, thereafter, vide notice dated 19.02.2019, invoked

the Arbitration Agreement as contained in Clause 36(a) of the Service

Rules for the Employees of M/s FIITJEE Ltd (Faculty Members)

(hereinafter referred to as the „Service Rules‟). As the Arbitration

Agreement granted a right to the petitioner to appoint the Sole Arbitrator,

a Sole Arbitrator was appointed by the petitioner. Certain proceedings

also took place before the Sole Arbitrator so appointed. Details of the

same are not relevant for the purpose of the present petition.

5.

The respondent thereafter filed an application under Section 14 of

the Act seeking termination of the mandate of the Arbitrator so appointed

by the petitioner, being OMP(T)(COMM) 17/2021. By an order dated

14.03.2022, the learned District Judge (Commercial-02), South District,

Saket, New Delhi was pleased to hold the Sole Arbitrator appointed by

the petitioner to be de-jure ineligible to act as an Arbitrator and

accordingly terminated his mandate. The petitioner thereafter filed the

present petition seeking appointment of an Arbitrator.

6.

The learned counsel for the respondents submits that in terms of

Section 14 of the Act, it would be for the Court which terminates the

mandate of the earlier Arbitrator to appoint a substitute Arbitrator. He

submits that the petitioner cannot invoke the provision of Section 11 of

the Act, having failed to pray for appointment of a substitute Arbitrator

before the learned District Judge.

Digitally Signed By:SUNIL

Signing Date:28.02.2023

14:56:45

Signature Not Verified

Neutral Citation Number: 2023/DHC/001355

ARB.P.1221/2022

Page 3 of 14

7.

He further submits that in the present case, the purported invocation

of the arbitration agreement by the petitioner itself cannot be relied upon.

He submits that the petitioner has invoked the Arbitration Agreement as

contained in Service Rules. The said Service Rules were applicable when

the respondent no.1 was in employment with the petitioner. He submits that

the respondent no.1 had left such employment and joined M/s USA

UNIVQUEST on 01.05.2016, and was thereafter governed by the

„Corrigendum and Addendum‟ dated 12.05.2016 between the respondent

no.1 and the said company. The said Corrigendum contained a sepa