Sr. Adv. with Ms. Megha Saxena, Ms. Shreya Bhatnagar and Mr.Shaurya Dahiya, Advs v. M/S MODA COCKTAIL ORS

SHRI SHEETAL DAWER .....Petitioner Through: Mr. Rajeev Saxena, Sr. Adv. with Ms. Megha Saxena, Ms. Shreya Bhatnagar and Mr.Shaurya Dahiya, Advs. versus M/S MODA COCKTAIL & ORS. .....Respondents Through: None. CORAM: HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV JUDGEMENT PURUSHAINDRA KUMAR KAURAV, J. (ORAL)

1. 2. None has appeared on behalf of the respondent despite notice. Service affidavit placed on record by the petitioner, reads as under:- “Affidavit of Service I, Megha Saxena, aged about 29 years D/o Shri Rajeev Saxena, Chamber No. 708, Lawyers Chamber Block-III, High Court, New Delhi, do hereby solemnly affirm and declare as under:-

1. That I am the counsel for the Petitioner in the captioned Petition, am well conversant with the facts of the case and hence, competent to swear the present affidavit. 2. That the Respondents herein were served as Advance Copy of the Petition at the time of filing via email on „[email protected]‟ on 22.02.2025, which email has not bounced back, the Proof of Service whereof, alongwith the Affidavit of Service, has been placed on record. 3. That in compliance of Order dated 24.04.2025 passed by this Hon‟ble Court, requisite steps were taken on behalf of the Petitioner Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:22.08.2025 14:23:01 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV and accordingly, Process Fee was filed on 25.04.2025 vide Diary No. 2882658/2025. 4. That on 29.07.2025, the Ordinary Service upon the Respondent No. 1 stands effected and has been received by an office employee of Respondent No.1, namely, Sunny, at the premises of the Respondent No.1-Company. 5. That Respondent No. 2 and 3 are Directors of Respondent No. 1- Company and service qua Respondents No. 2 and 3 is still awaited.”

3. Besides the aforesaid, the office report also indicates that service has been effected on respondents. Despite the service, no one has appeared for them. 4. The case of the petitioner seems to be that they have supplied certain material to the respondent, which is supported by invoices. The payments thereto has allegedly not been made by the respondent. 5. It is further seen that the said invoices contain an arbitration clause. The arbitration clause, along with the other conditions, in the invoices is extracted as under:- “1. Interest will be charged @ 24% after 7 days on total outstandings. 2. All disputes are to be decided by Delhi Hindustani Mercantile Association (Regd.) Delhi, as per its 'Rules & Regulations‟ as well as under 'Arbitration & Conciliation Act' and their (DHMA) award will be final & binding upon both parties. 3.Goods once sold will not be taken back. 4. No respons1bllity after dyeing/ bleaching. 5. Complaints if any will be entertained within 48 Hours and not beyond.” 6. Mr. Rajeev Saxena, learned senior counsel appearing for the petitioner, submits that earlier, the matter was referred to the Delhi Hindustani Mercantile Association (Regd.) Chandni Chowk, Delhi, and an award dated 12.08.2022 was passed, however, the aforesaid award is unenforceable in law. Therefore, the petitioner has filed the instant petition under Section 11 of the Arbitration and Conciliation Act, 1996, for appointment of the arbitrator. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:22.08.2025 14:23:01 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

7. He submits that, as per the clause in the invoices, vide legal notice dated 04.05.2023, the respondents were called upon to make the payment of the outstanding amount on account of the cost of the material as well as of the applicable interest. However, the same has not been paid; therefore, the instant petition has been filed. 8. The law with respect to the scope and standard of judicial scrutiny under Section 11(6) of the 1996 Act has been fairly well settled. 9. This Court as well, in the order dated 24.04.2025 in case of ARB.P. 145/2025 titled as Pradhaan Air Express Pvt Ltd v. Air Works India Engineering Pvt Ltd, has extensively dealt with the scope of interference at the stage of Section 11. The Court held as under:- “9. The law with respect to the scope and standard of judicial scrutiny under Section 11(6) of the 1996 Act has been fairly well settled. The Supreme Court in the case of SBI General Insurance Co. Ltd. v. Krish Spinning1, while considering all earlier pronouncements including the Constitutional Bench decision of seven judges in the case of Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re 2 has held that scope of inquiry at the stage of appointment of an Arbitrator is limited to the extent of prima facie existence of the arbitration agreement and nothing else.

10. It has unequivocally been held in paragraph no.114 in the case of SBI General Insurance Co. Ltd that observations made in Vidya Drolia v. Durga Trading Corpn.3, and adopted in NTPC Ltd. v. SPML Infra Ltd.,4 that the jurisdiction of the referral court when dealing with the issue of “accord and satisfaction” under Section 11 extends to weeding out ex-facie non-arbitrable and frivolous disputes would not apply after the decision of Re: Interplay. The abovenoted paragraph no.114 in the case of SBI General Insurance Co. Ltd reads as under:- “114. In view of the observations made by this Court in In Re: Interplay (supra), it is clear that the scope of enquiry at