Fee of the Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996: High Court of Delhi

4 to 6 ii) + iii) + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 20.09.2021 ARB.P. 841 2021 PARMINDER JIT KAUR ARB.P. 842 2021 PARMINDER JIT KAUR & ANR. ARB.P. 843 2021 PARMINDER JIT KAUR Petitioner(s) Through: Mr. Siddharth Asthana and Mr. Siddhant Nath Advocates SPLENDOR BUILDWELL PVT.LTD. & ANR. Through: Mr. Poorva Pant Advocate Respondents HON BLE MR. JUSTICE SURESH KUMAR KAIT JUDGMENT The hearing has been conducted through video conferencing. Petitioner in the first and third captioned is Ms. Paraminder Jit Kaur and in the second captioned petition besides her is Mr. Manmohanjit Singh is who have preferred these petitions under the provisions of Section ARB.P.841 2021 842 2021 & 843 2021 11(6) of the Arbitration and Conciliation Act 1996 for appointment of Arbitrator to adjudicate the dispute with respondents. Since parties to the present petitions are similar and even the subject matter of these petitions is more or less similar therefore with the consent of counsel representing both the sides these petitions have been heard together and are being disposed of by this common judgment. According to petitioner(s) respondent No.1 & 2 are companies registered under the Companies Act 1956 and pursuant to understanding between two of them respondent No.1 company agreed to undertake to develop and construct IT Building Tower(s) consisting of IT Office Spaces on the land admeasuring 6.775 acres situated in Sector 58 in the revenue estate of Village Behrampur Tehsil Sohna and District Gurgaon Haryana owned by respondent No.2. For this purpose respondents No.1 and 2 who are said to be sister concerns entered into a Space Buyers Agreement and Memorandum of Understanding dated 28.07.2021 in ARB.P.841 2021] Space Buyers Agreement Memorandum of Understanding dated 25.10.2016 in and Space Buyers Agreement and Memorandum of Understanding dated 06.05.2015 inwhereunder respondent No.1 undertook ARB.P.841 2021 842 2021 & 843 2021 to register conveyance deed in the name of petitioner within six months of receipt of Occupancy Certificate. The petitioner(s) claims to have paid entire amount of Rs.25 70 400 towards sales consideration with respect to unit No.404 super area of 765 Sq.ft on the Second Floor of Tower D in ARB.P.841 2021) and Rs.40 94 310 towards sales consideration with respect to unit No.412 super area of 1306 Sq.ft on the Second Floor of Tower D 9 and Rs.41 48 3201 towards sales consideration with respect to unit No.205 super area of 975 Sq.ft on the Second Floor of Tower B(Comm.) 175 2021 176 2021 & 177 2021] wherein respondents have undertaken that no third party interests shall be created with regard to properties in question with liberty to petitioners to invoke the arbitration clause. It is pleaded on behalf of the petitioners that petitioners vide Notice dated 14.07.2021 invoked the arbitration clause and appointed Shri. Udit Gupta as the Sole Arbitrator and invited respondent to give confirmation to the same. In reply thereof respondents vide its communication dated 13.08.2021 nominated its own sole Arbitrator which is contrary to the law. Hence these petitions. The contents of these petitions are disputed by learned counsel ARB.P.841 2021 842 2021 & 843 2021 appearing on behalf of respondents however is not disputed that the disputes inter se parties can be resolved through arbitration. 9. With regard to appointment of Arbitrators the Hon’ble Supreme Court in Perkins Eastman Architects DPC & Anr. Vs. HSCCLtd. 2019 SCC Online SC 1517 has categorically stated that “in cases where one party has a right to appoint a sole arbitrator its choice will always have an element of exclusivity in determining or charting the course for dispute resolution. Naturally the person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole 10. Applying the aforesaid dictum of Hon’ble Supreme Court to the case is hand the present petition is allowed. 11. Accordingly Ms. Anita Sahni Advocate is appointed sole Arbitrator in these petitions to adjudicate the dispute between arbitrator.” the parties. 12. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act 1996. 13. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act 1996 before commencing the arbitration. ARB.P.841 2021 842 2021 & 843 2021 14. With aforesaid directions the above captioned three petitions are accordingly disposed of. SEPTEMBER 20 2021 JUDGE SURESH KUMAR KAIT) ARB.P.841 2021 842 2021 & 843 2021 

Summary: Fee of the Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996: High Court of Delhi. The Arbitration and reconciliation Act 1966, deals with the different provisions of arbitration but the fees to be paid to the arbitrator sometimes comes into conflict The same issue was dealt in the case of Parminder Jit kaur vs. Splendor Buildwell Pvt. Ltd. &amp; Anr. By Hon’ble Mr. Justice Suresh Kumar Kait [ARB.P. 841/2021, ARB.P. 842/2021, ARB.P. 843/2021]. The present petitioner have been filled under the provisions of Section11(6) of the Arbitration and Conciliation Act, 1996 for the appointment of Arbitrator to adjudicate the dispute with respondents. With the consent of all the parties the matter is being heard together as the petitions are more or less similar. According to petitioner(s), respondent No.1 &amp; 2 are companies registered under the Companies Act, 1956 and pursuant to understanding between two of them, respondent No.1-company agreed to undertake to develop and construct IT Building/Tower(s) consisting of IT Office Spaces on the land admeasuring 6.775 acres situated in Sector-58 in the revenue estate of Village Berhampur, Tehsil Shona and District Gurgaon, Haryana owned by respondent No.2. For this purpose, respondents No.1 and 2, who were said to be sister concerns, entered into a Space Buyers Agreement and Memorandum of Understanding dated 28.07.2021 in [ARB.P.841/2021]; Space Buyers Agreement 24.10.2016 and Memorandum of Understanding dated 25.10.2016 in and Space Buyers Agreement and Memorandum of Understanding dated 06.05.2015 in .Where-under respondent No.1 undertook to register conveyance deed in the name of petitioner within six months of receipt of Occupancy Certificate. The petitioner(s) claimed to have paid entire amount of Rs.25,70,400/ towards sales consideration with respect to unit No.404, super area of 765 Sq. on the Second Floor of Tower-D (in ARB.P.841/2021) and Rs.40,94,310/- towards sales consideration with respect to unit No.412, super area of 1306 Sq. on the Second Floor of Tower-D 9 (in ARB.P.842/2021) and Rs.41,48,3201/ – towards sales consideration with respect to unit No.205, super area of 975 Sq. on the Second Floor of Tower-B (ARB.P.843/2021). The petitioner has submitted that the Space Buyers Agreements and Memorandum of Understandings have been violated, where-under in Clause-31 &amp; 34 it was agreed between the parties that disputes, if any, first shall be tried to be resolved through mutual discussion, failing which the same shall be settled through arbitration. After various demands by the petitioners for the payment of pending assured terms and execution of sale deed, the respondent provided no reply and therefore the present petition is present. The Delhi High Court following the dictums of the Supreme Court in the cases of Perkins Eastman Architects DPC &amp; Anr Vs. HSCC (India) Ltd. 2019 SCC Online SC 1517, allowed the petitioner and stated that “thus Ms. Anita Shani has been appointed as the sole arbitrator in the present matter. The fee of the learned Arbitrator shall be governed by the Fourth Schedule of the Arbitration and Conciliation Act, 1996. The learned Arbitrator shall ensure compliance of Section 12 of Arbitration and Conciliation Act, 1996 before commencing the arbitration, concluding the present petitions are disposed”