When disputes arise under two agreements, there shall be two arbitral proceedings, though may be assigned to the same arbitrator: High Court of Delhi.
Ideally, two petitions would have to be filed where there are two arbitration agreements and, consequently, two arbitral proceedings would be required to be conducted as per the law laid down by the Supreme Court, in a case. A single Judge bench comprising Hon’ble Justice C. Hari Shankar, in the matter of Delhivery Private Limited Vs. SS Supply Chain Solutions Private Limited (ARB.P. 412/2021), dealt with an issue where the petitioner filed a petition seeking reference of disputes under two agreements, between the petitioner and the respondent, to arbitration. In the present case, the court observed that ideally two arbitration agreements should be filed, and two arbitral proceedings would be required to be conducted as per the law laid down by the Supreme Court in Duro Felguera S.A. v. Gangavaram Port Ltd., but the court preferred a single petition for both the agreements. The petitioner had sent a notice to the respondent thereby invoking arbitration under the said agreements, but the respondent did not send any response to that notice. The dispute in the present petition appears to be only with respect to the identity of the arbitrator to arbitrate thereon. The court after going through the petition stated that- “it is not necessary to set out the substratum of the dispute between the parties in extenso”. As per the agreements it was clear that absolute authority was upon one of the parties to the agreements to appoint the arbitrator. But as the parties could not agree upon themselves and decide on an arbitrator for their dispute, the task of appointing an arbitrator to resolve their dispute fell on the court. The counsel for the petitioner agreed to refer the dispute for arbitration by the Delhi International Arbitration Centre (DIAC). Accordingly, the disputes between the parties were referred to the DIAC for arbitration. The court stated that- “Needless to say, as disputes arise under two agreements, there shall be two arbitral proceedings, though, given the interconnect between the disputes, they may be assigned to the same arbitrator.” Thereby the petition was disposed of.
2ARB.P. 412 2021 IN THE HIGH COURT OF DELHI AT NEW DELHI DELHIVERY PRIVATE LIMITED ..... Petitioner Through: Mr.Arjun Krishnan Mr.Sumit Srivastava and Mr.Kaustav Som Advs. SS SUPPLY CHAIN SOLUTIONS PRIVATE LIMITED Through: None Respondent HON BLE MR. JUSTICE C. HARI SHANKAR O R D E RVideo Conferencing) This is a petition seeking reference of disputes under two agreements dated 5 th April 2019 and 6th December 2019 between the petitioner and the respondent to arbitration. Though ideally two petitions would have to be filed as there are two arbitration agreements and consequently two arbitral proceedings would be required to be conducted as per the law laid down by the Supreme Court in Duro Felguera S.A. v. Gangavaram Port Ltd.1 in order to avoid multiplicity of proceedings I am entertaining this single petition for both the agreements especially as the respondent who has not chosen to file a reply to this petition has in its reply dated 10th March 2021 to the notice whereby the petitioner 19 SCC 729 ARB.P. 412 2021 invoked arbitration under the said agreements not disputed the referability of the controversy to arbitration. The dispute in the present petition appears to be only with respect to the identity of the arbitrator to arbitrate thereon. In view thereof it is not necessary to set out the substratum of the dispute between the parties in extenso though it may be said that it is contained in paras 4 to 25 of the petition. The agreements dated 5th April 2019 and 6th December 2019 contain identical arbitration clauses which reads thus: All Disputes arising out of or in connection with this agreement or its construction or effect or as to the right duties obligations or liabilities of the parties hereto shall be resolved by arbitration conducted exclusively at Delhi under the provisions of Arbitration and Conciliation Act 1996. A sole Arbitrator shall be appointed by 3SC only such arbitration shall be conducted by a sole Arbitrator. The arbitration proceedings shall be conducted only in English Language. The decision of the sole arbitrator shall be final and binding on both the parties. The arbitrator so appointed shall be entitled for his arbitration fee which shall be borne by both the parties equally." As the aforesaid clause confers absolute authority to one of the parties to the agreements to appoint the arbitrator it flies in the face of Section 12(5) of the 1996 Act as well as the law laid down by the Supreme Court in Perkins Eastman Architects DPC v. HSCCLtd.2 Bharat Broadband Network Ltd. v. United Telecoms Ltd.3 and 2 2019 SCC OnLine SC 1517 ARB.P. 412 2021 Haryana Space Application Centre v. Pan India Consultants and cannot therefore be enforced as it stands. As the parties had not been able to agree between themselves as to the arbitrator to arbitrate on the disputes the task of appointing an arbitrator falls on this Court. 7. Mr. Krishnan learned Counsel for the petitioner is agreeable to the disputes being referred to arbitration by the Delhi International Arbitration Centre5 SCC 755 4 3 SCC 103 