Mr. N.S. Dalal, Ms.Nidhi Dalal, Mr. Alok Kumar, Ms.Rachna Dalal and Mr.Karan Mann, Advocates v. M/S. AIRCEL COMPANY THROUGH DIRECTOR & ANR. ITS MANAGING

Through: Mr. Ankit Kumar, Advocate. HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV JUDGEMENT PURUSHAINDRA KUMAR KAURAV, J. (ORAL)

1. The present petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (the 1996 Act) by the petitioner, seeking appointment of an Arbitrator, to adjudicate upon the disputes that have arisen between the parties under the License Agreement dated

21.02.2009.

2. Learned counsel for the petitioner submits that the late husband of the Signature Not Verified Signed By:PRIYA Signing Date:08.05.2025 12:18:56 1 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV petitioner was the absolute owner and in possession of property bearing No. 6/207, Sundar Vihar, New Delhi – 110087. Upon the demise of the husband of the petitioner on 09.01.2019, it is submitted that the ownership of the property devolved equally upon the petitioner and her two daughters, namely, Ms. Rakhi Bhardwaj and Ms. Ridhi Bhardwaj. Subsequently, both daughters executed a relinquishment deed, thereby relinquishing their respective one-third shares in favour of the petitioner herein, who thus became the sole owner of the subject property.

3. Owing to the advanced age of the petitioner and allied health concerns, it is submitted that the petitioner has executed a Power of Attorney authorising her daughter, Ms. Rakhi Bhardwaj, to represent her in all legal proceedings pertaining to the present dispute.

4. It is submitted that the respondents had approached the late husband of the petitioner with a proposal to lease a portion measuring 850 sq. ft. on the second floor (roof of the first floor) of the subject property for the installation of a mobile tower. The said proposal was accepted, and accordingly, a License Agreement was executed on 21.02.2009 between the petitioner and the respondents. As per the terms of the agreement, the respondents undertook to pay a monthly license fee of Rs. 15,000/-, with a 10% escalation every five years to the last paid license fee.

5. Learned counsel further submits that the respondents have failed to make payment of the license fee as agreed, resulting in accumulation of arrears. In view of such persistent default, the petitioner served a legal notice dated 10.07.2024 upon the respondents, calling upon them to clear the Signature Not Verified Signed By:PRIYA Signing Date:08.05.2025 12:18:56 2 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV outstanding dues and to remove the installed mobile tower from the premises. Despite issuance of the said notice, no payment was made, nor was the tower removed. Consequently, the petitioner was constrained to invoke the arbitration clause and issued a separate notice seeking appointment of an arbitrator in terms of the agreement.

6. It is submitted that Clause 11 of the License Agreement dated

21.02.2009 stipulates that any disputes between the parties shall first be attempted to be resolved amicably, failing which the same shall be referred to arbitration in accordance with the provisions of the 1996 Act. As no amicable resolution was reached and the respondents failed to appoint an arbitrator within the stipulated time, the present petition under Section 11(6) of the Act has been preferred seeking appointment of a Sole Arbitrator.

7. On notice being issued, the respondents are represented by Mr. Ankit Kumar, Advocate. He fairly submits that he does not have any objection to the prayer made herein, subject to reserving his rights and contentions.

9. Heard learned counsel appearing on behalf of the parties. The Court takes note of the Clause 11 of the License Agreement dated

21.02.2009, which reads as under:- “11. DISPUTE RESOLUTION AND APPLICABLE LAWS In the event of any dispute arising by and between the parties hereto, the same shall be amicably resolved by Conciliation, failing which, by Arbitration conducted by a sole arbitrator duly nominated by the Licensee, in accordance with the provisions of the Arbitration & Conciliation Act, 1996 (as amended) and in case of death refusal neglect or incapability of the appointed arbitrator to act as an Arbitrator then Signature Not Verified Signed By:PRIYA Signing Date:08.05.2025 12:18:56 3 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV the same shall be referred to the Sole Arbitrator to be appointed by the Licensee, whose decision shall be binding upon both the parties. The venue of the Arbitration shall be Delhi. The decision of the arbitrator shall be final and binding on the parties. All disputes shall be subject to the jurisdiction of Delhi courts. The governing law shall be laws of India.”

10. 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. 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 Spinning,1 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