CM(M) 92/2021

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$~65(Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 92/2021 & CM APPL.4050 /2021

MS VAG EDUCATIONAL SERVICES

..... Petitioner

Through:

Ms. Tanya Agarwal, Adv.

versus

AAKASH EDUCATIONAL SERVICES LTD ..... Respondent

Through:

Ms.Qausar Khan, Adv.

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

JUDGMENT(O R A L)

%

12.10.2022

1.

Ms. Qausar Khan appears for the respondent in this matter and

submits on instructions that she has no objection if this petition is

disposed off on the basis of the submissions advanced by Ms.Tanya

Agarwal, learned Counsel for the petitioner and on the basis of the

material on record.

2.

Accordingly, I have heard Ms.Agarwal and proceed to dispose

of the matter on the basis of the record available with the Court.

3.

The issue in controversy is brief. Arb.Case No. 110/18, which

was continuing between the petitioner and the respondent before a

learned Sole Arbitrator, was withdrawn by the respondent, as the

claimant in the arbitral proceedings on 21^st September 2019. The

order passed by the learned Sole Arbitrator on the said date reads thus:

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CM(M) 92/2021

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“Arbitration Case No. 110/18

AESL V. VAG Educational Services Ltd.

21.9.2019

Pr:

Sh. Shwaney Singh Meena A/R with Ms. Namita Adv.

for the claimant

Shri Mahesh Chandra Gupta Adv for the NC/

Respondent with Shri Vishal Gupta

In view of the submissions of the A/R and Ld. Counsel for the

claimant the present matter is dismissed as withdrawn.

Order announced and dictated in open tribunal

File be kept on record.

21.9.2019

SC Rajan

Sole Arbitrator”

4.

Subsequently, the respondent, as the claimant in the arbitral

proceedings, moved an application seeking recall of the afore-

extracted order dated 21^st September 2019. It was sought to be

contended, therein, that no consent, for withdrawal of the arbitral

proceedings, had been granted either by the authorised representative

or by the “proxy Counsel” who was present on behalf of the

respondent-claimant.

5.

However, during the pendency of the said application, an

affidavit was filed by the Counsel representing the respondent-

claimant, adopting an entirely different stand. In the said affidavit, it

was sought to be contended that the learned Counsel had inadvertently

signed the withdrawal order sheet of the arbitral proceedings, as her

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CM(M) 92/2021

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instructions, from her Senior Counsel were to withdraw another matter

pending before the same learned Sole Arbitrator.

6.

As such, the affidavit effectively gave up the plea, in the

application, that the order dated 21^st September 2019, of the learned

Sole Arbitrator, terminating the arbitral proceedings as withdrawn,

was passed in error or without authorisation. Learned Counsel for the

respondent-claimant accepted responsibility for having signed the

withdrawal application, but pleaded that it was owning to an

inadvertent mistake.

7.

By the impugned order dated 18^th January 2020, the learned

Arbitrator allowed the afore-noted application of the respondent-

claimant and restored the arbitral proceedings, observing that a party

could not be permitted to be prejudiced owing to fault of Counsel.

However, the learned Arbitrator took exception to the assertions in the

application which, he felt, questioned his impartiality in the

proceedings. He, therefore, recused from the proceedings and allowed

parties to appoint an alternate arbitrator.

8.

The said order dated 18^th January 2020 formed subject matter of

challenge in the present petition instituted under Article 227 of the

Constitution of India.

9.

I had initial misgivings regarding the maintainability of the

present petition, predicated on the judgments of the Supreme Court in

SBP & Co. v. Patel Engineering Ltd. and Anr.¹and Bhaven

1 (2005) 8 SCC 618

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