Mr. Puneet Raj Banderwal, Mr. Ravi Shankar Garg and Ms. Mamta Garg, Advs v. DR. IFTEKHAR MUKHTAR AHMED ANR

DR. IFTEKHAR MUKHTAR AHMED & ANR. .....Respondents Through: Mr. Arvind Kumar, Dr. Geeta Oberoi, Mr. Ankit Kumar Vats, Mr. Nikhil Anand and Mr. Priyanshu Jaiswal, Advs. CORAM: HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV % O R D E R 03.04.2025 I.A. 48941/2024 (exemption)

2. Allowed, subject to all just exceptions. Application stands disposed of. ARB.P. 2081/2024

3. Having heard learned counsel appearing for the parties, the Court finds that the petitioner-Company sanctioned the Medical Equipment Term Loan amounting to Rs.32,70,653/- vide sanction letter dated 30.04.2022. Pursuant to the sanction, Facility-Cum-Hypothecation Agreement along with the Deed of Guarantee dated 10.05.2022 were executed.

4. On account of non-adherence to the fiscal discipline agreed by the respondents, the petitioner-Company was constrained to terminate the loan facility vide the termination notice dated 22.11.2023. According to the termination notice, respondents were called upon to make the payment of an This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/04/2025 at 12:43:04 outstanding amount of Rs.26,56,062.35/-.

5. Despite the notice of termination, the respondents did not make the payment. Thereafter, the petitioner-Company invoked proceedings under Section 9 of the Arbitration and Conciliation Act, 1996 (the Act) on

30.03.2024, and an interim order was passed by the Court of competent jurisdiction.

6. Subsequent thereto, a notice dated 19.11.2024, under Section 21 of the Act was issued to the respondents invoking arbitration.

7. On notice being issued, Mr. Arvind Kumar, learned counsel appearing for the respondents contends that the goods in question have already been seized. Therefore, it is contended by the learned counsel that the Court may not appoint the Arbitrator.

8. It may be noted that the aforesaid submissions would have no bearing on the prayer made in the instant petition. It is also noted that proceedings under Section 9 of the Act have already been carried out awaiting the appointment of an Arbitrator under Section 11 of the Act.

9. It is also noted that the instant petition has been filed for the appointment of an Arbitrator in accordance with Clause 8.7 of the Facility- Cum-Hypothecation Agreement and Clause 10 of the Deed of Guarantee, executed between the parties. The aforesaid clauses state that if any dispute arises between the parties then the said dispute will be settled or adjudicated through Arbitration and the seat of Arbitration Proceeding shall be New Delhi. Extracts of the relevant clauses are as below: - ARBITRATION CLAUSE of "Facility-Cum-Hvpothecation Agreement"

8.7 ARBITRATION 8.7.1 In case of any dispute arising out of or in relation to the Transaction Documents, the party shall settle the dispute through This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 17/04/2025 at 12:43:04 arbitration under the Indian Arbitration and Conciliation Act, 1996 (amendments thereto. The Arbitration shall be referred to a sole arbitrator appointed by the Lender. The Venue of arbitration proceedings shall be New Delhi, India. All Proceedings shall be in English. 8.7.2 The award of the arbitrator shall be final and binding on the Parties and the expenses of the arbitration shall be borne in such manner as the arbitrator may decide. ARBITRATION CLAUSE of "Deed of Guarantee"

10. ARBITRATION, GOVERNING LAW AND JURISDICTION 10.1 Governing Law and Jurisdiction: Subject to Clause 10.2 (Arbitration), any dispute under this Guarantee shall be governed by and construed in accordance with the laws of India and be subject to the jurisdiction of the Courts at New Delhi. 10.2 All Claims, disputes or differences whatsoever which may at any time hereafter arise between Lender and Guarantor(s) hereto concerning this Guarantee or its constructions or effect or as to the rights, duties, obligation or to any matter in any way connected with or arising out of or in relation to the subject matter of this Guarantee shall be referred to arbitration of a sole arbitrator appointed by the Lender. The arbitration proceedings shall be conducted in English in accordance with and subject to the provisions of Arbitration and Conciliation Act. 1996 or any statutory modification or reenactment thereof for the time being in force. The place of Arbitration shall be at New Delhi. The Parties agree that any award passed shall be final and binding.” It is thus seen that the dispute is amenable to be adjudicated by the

10. arbitrator. It is explicitly evident that where there exists an arbitration clause in the event any dispute arises between the parties, there is no impediment in appointing an independent Sole Arbitrator. Reference can be made to the decisions of the Supreme Court in Perkins Eastman Architects DPC v. HSCC (India) Ltd.,1 TRF Limited v. Energo Engineering Projects Ltd.,2 Bharat Broadband Network Limited v. United Telecoms Limited.,3 and