FAO(OS) No. 18 of 2009 Page No.1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) No. 18 of 2009 & C.M. No. 1044 of 2009 % Reserved on: August 06, 2009 Pronounced on : August 07, 2009 IMPERATIVE INFOTECH SOLUTIONS PVT. LTD. ..... Appellant Through: Mr. Vinay Kumar Garg, Advocate. versus ASPIRANT TECHNOLOGIES PVT. LTD. & ANR. .....Respondents Through: Mr. C.N. Sree Kumar and Mr. P.R. Nayak, Advocates. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL 1. Whether Reporters of the local newspapers may be allowed to see the judgment? [NO] 2. Whether to be referred to the Reporter or not? [NO] 3. Whether the judgment should be reported in the Digest? [NO] J U D G M E N T MUKUL MUDGAL, J. 1. The present appeal arises out of the impugned order of the learned Single Judge dated 9th January, 2009 passed in OMP No. 4 of 2009. This matter came up before the Court from time to time. On 17th February, 2009, the following order was passed by this Court:- “ List on 24th February, 2009. Before we consider the issue of passing an interim order, parties are directed to make an effort to mutually settle the matter. In the meanwhile the order dated 09.01.2009 is stayed to the extent that respondent no. 2 was deleted from the array of parties. Accordingly, the appellant is permitted to implead as a party respondent, and to serve Sh. Himanshu Madan before the next date. In any case, Mr. Balgopal states that he will request Mr. Madan to participate in the compromise talks. Dasti. List on 24th February, 2009.” FAO(OS) No. 18 of 2009 Page No.2 of 4 2. Thereafter on 24th February, 2009, the order passed by this Court reads as follows:- “C.M. No. 1045/2009 Allowed, subject to all just exceptions. C.M. No. 1044/2008 Reply be filed before 27th February, 2009. In the meanwhile, provided the rent is paid by the appellant to the respondent No. 1 from tomorrow onwards, prayers B and C made in the appeal memo are granted. Dasti under the signature of the Court Master. List on 2nd March, 2009.” 3. On 2nd March, 2009, the following order came to be passed by the Court:- “C.M. No.1044/2009 We modify the order dated 24th February, 2009 and therefore, as far as prayer (b) is concerned, it has now become infructuous qua both the respondents as the agreement came to an end on 28.02.2009. As far as prayer (c) qua respondent No.1 is concerned, it shall cease to operate on 31.05.2009 only qua respondent No.1 but shall continue against respondent No.2 until the next date. Accordingly, with this order the appeal has become infructuous qua respondent No.1 and respondent No.1 is discharged from the array of parties. In so far as the respondent No.2 is concerned, reply has been filed by him. Rejoinder to that be filed within three weeks from today. List on 01st April, 2009. Dasti.” 4. On the last date of hearing i.e. 21st July, 2009, the learned counsel for the appellant submitted that the dispute with respondent FAO(OS) No. 18 of 2009 Page No.3 of 4 No. 1 was already over and insofar as the disputes with respondent No. 2 are concerned, he submitted that the talks between the parties may resolve the matter completely. Accordingly, the matter was adjourned for a possible settlement. 5. Today the parties have reported that no settlement is possible in the matter between the appellant and respondent No. 2. 6. The only ground urged before us by the learned counsel for the appellant today is that respondent No. 2 could not have been deleted as a party to the proceedings before the learned Single Judge. The learned Single Judge had held in the impugned order dated 9th January, 2009 that respondent No. 2 not being a party to the arbitration agreement on the basis of which the petition had been filed, could not be made a party to the proceedings. The learned Single Judge accordingly directed the name of respondent No. 2 to be struck off from the array of respondents. 7. It is submitted by learned counsel for the respondent No. 2 that a petition under Section 11 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as „the Act‟) has been filed by the appellant for appointment of an Arbitrator. However, respondent No. 2 has not been made a party to the said petition. Since the only issue which survives in the present appeal is whether respondent No. 2 could have been deleted as a party to the proceedings before the learned Single Judge, we feel that ends of justice would be met and it FAO(OS) No. 18 of 2009 Page No.4 of 4 would be just and equitable to dispose of the present appeal with the observation which counsel for both the parties agree to. 8. It is open to the appellant to move an appropriate petition in accordance with law under Section 11 of the Act for appointment of an Arbitrator to settle the disputes which may have arisen between the appellant and respondent No. 2. The respondent No. 2, in turn, would be entitled to contest the same and raise all pleas and objections to the same in accordance with law including the maintainability of the said petition qua respondent No. 2. It is clarified with the consent of counsel for both the parties that the observations and findings of the learned Single Judge made in the impugned order dated 9th January, 2009, will not come in the way of the appellant moving an appropriate petition under Section 11 of the Act. 9. With the above observations, the present appeal is disposed of. The pending application stands disposed of as well. MUKUL MUDGAL (JUDGE) NEERAJ KISHAN KAUL (JUDGE) AUGUST 07, 2009 sb