CM(M) 914/2022

Page 1 of 4

$~49 (Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 914/2022 & CM APPL. 39131/2022, CM APPL.

39132/2022

DHANI LOANS AND SERVICES LTD

..... Petitioner

Through:

Mr. Sunil Dalal, Sr. Adv. with

Mr. Ghanisht Bagaria, Ms. Manisha Saroha,

Ms. Pratibha Varun, Mr. Gunraj Bakshi and

Mr. Devashish Bhadauria, Advs.

versus

PANSARI DEVELOPERS LIMITED & ORS ...... Respondents

Through:

Ms. Eshna Kumar, Mr. Udit

Gupta, Mr. Akshay Goel, Ms. Prachi Bhatia

and Ms. Misha Kumar, Advs.

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

JUDGEMENT (ORAL)

%

06.09.2022

1.

This petition, under Article 227 of the Constitution of India,

assails procedural order dated 22^nd July 2022, passed by the learned

Arbitrator inseisin of Arbitration Case No. 921/2021, between the

respondent as the claimant and the petitioner as the respondent.

2.

As, in my view, the present petition is not maintainable under

Article 227 of the Constitution of India, no detailed allusion to the

dispute between the parties is necessary.

3.

By order dated 11^th April 2022, the right of the petitioner (as

Respondent 1 before the learned ADJ) to file statement of defence was

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003580

CM(M) 914/2022

Page 2 of 4

closed under Section 25(B)¹ of the Arbitration and Conciliation Act,

1996 (“the 1996 Act”).

4.

The petitioner filed an application on 20^th May 2022 seeking

recall of the said order. By the impugned order dated 22^nd July 2022,

the learned Arbitrator has rejected the said application.

5.

The impugned order is clearly interlocutory in nature. Mr. Sunil

Dalal,

learned

Senior

Counsel

for

the

petitioner

candidly

acknowledges, in so many words, that the challenge that is raised in

the present petition to the impugned order may be available as a

ground of challenge to any final award which may come to be passed

in the arbitration proceedings, but submits, nonetheless, that no other

remedy is available, at this stage, to the petitioner against the

impugned order. Thus, according to Mr. Dalal, the petitioner is

remediless at this stage and, therefore, a petition under Article 227

would lie against the impugned order dated 22^nd July 2022.

6.

I have had occasion to examine this position repeatedly,

recently in the past, inter alia, in the decisions in Easy Trip Planners

Ltd v. One97 Communications Ltd² and VRS Natarajan v. OYO

Hotels and Homes Pvt Ltd³.

125. Default of a party.— Unless otherwise agreed by the parties, where, without showing sufficient

cause,—

(b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of

section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an

admission of the allegations by the claimant [and shall have the discretion to treat the right of the

respondent to file such statement of defence as having been forfeited].

22022 SCC OnLine Del 2186

3CM(M) 353/2022 judgement dated 31.08.2022

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003580

CM(M) 914/2022

Page 3 of 4

7.

In my considered opinion, on a conjoint reading of the

judgments of the Supreme Court, of a Bench of three Hon’ble Judges

in SBP & Co v. Patel Engineering Ltd⁴and a Bench of two Hon’ble

Judges in Bhaven Construction v. Executive Engineer, Sardar

Sarovar Narmada Nigam Limited⁵, an interlocutory order, the legality

of which is available as a ground of challenge against a final award

which may come to be passed in the arbitral proceedings, cannot be

assailed under Article 227 of the Constitution of India. The mere fact

that, at the time of passing of the interlocutory order, no remedy may

be provided thereagainst, under the 1996 Act, cannot be a ground to

entertain a writ petition against such order under Article 227. Even if

the challenge to the interlocutory order is available as a ground of