Pawan Gupta & Anr. vs Kamal Gupta & Ors. 2024 Latest Caselaw 2461 Del

Delhi High Court Pawan Gupta & Anr. vs Kamal Gupta & Ors. on 22 March, 2024 Author: Sachin Datta Bench: Sachin Datta $~J-1 & 3 * IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 22.03.2024 + ARB.P. 1010/2022 and I.A. 4456/2023, 18217/2023 & 13282/2023 PAWAN GUPTA & ANR ..... Petitioners Through: Mr. Sandeep Sethi, Sr. Advocate along with Mr. Himanshu Satija, Mr. Karan Khanna, Ms. Simran Mulchandani, Mr. Harshit, Ms. Shreya Sethi, Mr. Sumer Dev Seth and Ms. Riya Kumar, Advocates for petitioner No. 1. Ms. Malvika Trivedi, Sr. Adv. alongwith Mr. Harshit Khanduja, Mr.Pulkit Khanduja, Mr. Shailendra Slaria and Ms. Sujal Gupta, Advocates for petitioner No.2. versus KAMAL GUPTA & ORS ..... Respondents Through: Mr. Ratan K. Singh, Sr. Adv. alongwith Ms. Pallavi Anand, Mr. Gautam Dhamija, Mr. Parth Dixit and Ms. Saloni Sharma, Advocates. Mr. Amit Sibal, Sr. Advocate, alongwith Ms. Jyoti Taneja, Ms. Kanika Singhal and Ms. Aarzoo Aneja, and Ms. Ishita, Advocates for intervenors. + O.M.P.(I) (COMM.) 198/2023 and I.A. Nos. 11585/2023, 11867/2023, 14469/2023 & 12227/2023 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 1 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 PAWAN GUPTA & ANR ..... Petitioners Through: Mr. Sandeep Sethi, Sr. Advocate along with Mr. Himanshu Satija, Mr. Karan Khanna, Ms. Simran Mulchandani, Mr. Harshit, Ms. Shreya Sethi, Mr. Sumer Dev Seth and Ms. Riya Kumar, Advocates for petitioner No. 1. Ms. Malvika Trivedi, Sr. Adv. along with Mr. Harshit Khanduja, Mr. Pulkit Khanduja, Mr. Shailendra Slaria and Ms. Sujal Gupta, Advocates for petitioner No.2. Versus KAMAL GUPTA & ORS ..... Respondents Through: Mr. Ratan K. Singh, Sr. Adv. alongwith Ms. Pallavi Anand, Mr.Gautam Dhamija, Mr. Parth Dixit and Ms. Saloni Sharma, Advocates. Mr. Amit Sibal, Sr. Advocate, alongwith Ms. Jyoti Taneja, Ms. Kanika Singhal and Ms. Aarzoo Aneja, and Ms. Ishita, Advocates for intervenors. CORAM: HON'BLE MR. JUSTICE SACHIN DATTA JUDGMENT 1. ARB.P. 1010/2022, is a petition under Section 11 of the Arbitration and Conciliation Act, 1996 ('A&C Act') seeking appointment of a sole arbitrator to adjudicate disputes between the parties arising out of an Oral Family Settlement dated 30.09.2014 as recorded in the Family Settlement Deed dated 20.06.2015 and followed by the Family Settlement Deed dated Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 2 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 09.07.2019 ('FSD'). 2. O.M.P.(I) (COMM.) 198/2023, is a petition under Section 9 of the A&C Act seeking certain interim measures. 3. In both the Sections 11 and 9 petitions, intervention applications 1, have been filed by one Mr. Rahul Gupta and certain companies through its authorized representative Mr. Rahul Gupta, objecting to the appointment of arbitrator under the FSD. Factual Background 4. Briefly put, the facts are that Mr. Pawan Gupta (petitioner no.1) is stated to be the founding member of the family business of P.P. Jewellers Group, who started the said business in 1980s. It was subsequently joined by other family members including his elder brother Kamal Gupta (respondent no.1) and his family members. Over the years, the family members have incorporated various entities for operating this business. In the year 2014, on account of certain disputes arising between the family members, it was decided to partition the assets/ businesses etc. between the family members. Consequently, an Oral Family Settlement was arrived on 30.09.2014; this was recorded in the Family Settlement Deed dated 20.06.2015. Mr. Rahul Gupta (intervenor), who is the son of Mr. Kamal Gupta, is mentioned as one of the executant of the said settlement deed although it is disputed if he is a signatory to the said settlement. In continuation of the same, the family members have executed a Family Settlement Deed dated 09.07.2019. Notably, Mr. Rahul Gupta was not a signatory to the said FSD. This was noted in the FSD itself. Annexure 'A' of the FSD itself identifies and 1 IA Nos. 18217/2023 & 13282/2023 in ARB.P. 1010/2022 and IA No. 12227/2023 in O.M.P.(I) (COMM.) 198/2023 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 3 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 separates the assets and businesses of Mr. Rahul Gupta, in which he has full/partial control, from the performance of the FSD. Annexure 'B' of the FSD records certain identified assets that were not dealt in the FSD. Annexure 'C' of the FSD records the prior division of assets between the parties. Annexure 'C-1' records the additional asset allocated to 'Pawan Gupta Group' towards its share. Annexure 'D' identifies the liabilities of the parties. Annexure 'E' rearranged the properties of the Kamal Gupta Group amongst its own constituents which included Mr. Rahul Gupta. 5. Mr. Pawan Gupta and her wife Mrs. Renu Gupta (i.e. the petitioners) described as "Pawan Gupta Group" in the FSD are aggrieved since the "Kamal Gupta Group", as described in the FSD, has not performed its obligation arising from the FSD. In particular, Pawan Gupta Group is aggrieved since the immoveable property bearing no. 2700, Desh Bandhu Gupta Road, Karol Bagh, New Delhi i.e., the Karol Bagh showroom of P.P. Jewellers, falling to its shares as per the FSD, has not been transferred to it. It is also aggrieved on account of Kamal Gupta Group not providing Pawan Gupta Group its share in the stocks of the family business. 6. Disputes having arisen between the parties, Pawan Gupta filed a petition under Section 9 of the A&C Act, inter alia seeking urgent protective orders with reference to implementation of the FSD. Vide judgment/order dated 05.07.2022 in O.M.P (I) (COMM) No.186/2022, the said petition was partly allowed and Kamal Gupta Group was restrained from alienating or creating third party rights in respect of the immovable properties including property bearing no. 2700 Desh Bandhu Gupta Road, Karol Bagh, New Delhi falling to Pawan Gupta's share till the time the matter is considered by the Arbitral Tribunal. Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 4 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 7. Thereafter, the petitioners sent a notice invoking arbitration dated 08.07.2022 upon the Kamal Gupta Group. The said notice was duly replied by the Kamal Gupta Group vide letter dated 16.07.2022 raising certain objections to the appointment of arbitrator. Consequently, the present petitions came to be filed. 8. The arbitration clause, which has been invoked by the petitioners, is contained in the FSD dated 09.07.2019. The same reads as under: "In the event of any dispute or differences arising out or in relation to the interpretation of any clause of this MOU/Agreement, the same shall be settled by a Sole Arbitrator to be appointed by mutual consent of the parties to this Agreement. If any group/party fails to agree to the name of a Sole Arbitrator, the same shall be appointed by the Hon'ble High Court of Delhi at New Delhi in accordance with Arbitration and Conciliation Act 1996 as amended. The place of Arbitration shall be at Delhi." 9. Although, the present petitions were initially objected to by the respondents, a joint application 2 came to be filed by the petitioners and respondents seeking appointment of a sole arbitrator for adjudication of their disputes under the FSD dated 09.07.2019. Para 4 of the said application is reproduced hereunder: "4. For adjudicating the Claims arising out of the Family Settlement Dated deed 09.07.2019, the following shall be the necessary parties, who have signed through their respective authorised signatories or partners:- 2 I.A. No. 14469/2023 in O.M.P.(I) (COMM.) 198/2023 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 5 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 6 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 7 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 8 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 9 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 10. It is clear from above that apart from the eight signatories to the FSD [i.e. Pawan Gupta Group and Kamal Gupta Group], certain companies in which the signatories of the FSD are majority shareholders, have also signed the joint memorandum/application. The board resolutions/authorisation letters of the said companies have also been placed on record. Therefore, the parties to the Section 11 and Section 9 petitions are agreeable to resolve their disputes through arbitration. Submissions of the Parties 11. Learned senior counsel for Mr. Rahul Gupta and the intervenor companies has vehemently opposed appointment of an arbitrator. He has broadly contended as under: a. It is submitted that the disputes that are being sought to be Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 10 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 referred to arbitration are non-arbitrable. He has submitted that the properties belonging to the intervenor companies, who are not signatories to the FSD, have been sought to be dealt in the FSD. He has further submitted that FSD contemplates stripping away assets of the company without any consideration to the owner company. Therefore, he argued that the consideration and object of the FSD is unlawful under Section 23 of the Indian Contract Act, 1872. Reliance was placed on the decisions in South India Biblical Seminary v. Indraprastha Shelters (P) Ltd. 3, and Vinod Kumar Sachdeva (dead) through LR v. Ashok Kumar Sachdeva & Ors. 4, to contend that disputes that impact/injure third party rights are non-arbitrable. He has further submitted that division of assets of a company is within the exclusive jurisdiction of the NCLT under the Section 230 of the Companies Act, 2013 and the jurisdiction of civil courts is barred under Section 430 of the Companies Act. He emphasized that shareholders/directors cannot inter se divide the assets belonging to the companies, as is sought to be done in the FSD since a company is a separate legal entity. Reliance in this regard has been placed on Shashi Prakash Khemka (dead) through LR & Anr. v. NEPC Micon & Ors. 5, SAS Hospitality (P) Ltd. & Anr. v. Surya Constructions (P) Ltd. & Ors.6, Haryana Telecom Limited v. Sterile Industries India Ltd7., Sanjay Kapur and Ors. v. Vikram Kapur and Ors.8, Bacha F. 3 2022 SCC OnLine Kar 915 4 2023 SCC OnLine SC 878 5 (2019) 18 SCC 569 6 2018 SCC OnLine Del 11909 7 (1999) 5 SCC 688 8 MANU/DE/2195/2015 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 11 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Guzdar v. Commissioner of Income Tax, Bombay 9, Su-Kam Power Systems Ltd. v Kunwer Sachdev 10, Globe Motors Limited v Mehta Teja Singh & Co. 11 and Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese 12.. b. He has further submitted that the respondents cannot approbate and reprobate. He has pointed out that in a prior suit i.e., CS(Commercial) No. 1551/2021 titled PP Jewellers Private Limited v. PP Jewellers Retail Private Limited & Ors. filed by P.P. Jewellers (of which Kamal Gupta is a director) a stand has been taken that the FSDs are a nullity in the eyes of law. He submitted that in the said suit, Ld. Judge, Tis Hazari Courts vide order dated 26.07.2021, has also declared the FSDs a nullity in the eyes of law. Reliance was placed on following para of the said order: "120. The two deeds dated 20.06.2015 and 09.07.2019 relied upon by defendants are not binding on plaintiff. Rather they are nullity in the eyes of law. The plaintiff is not a party to either of the deeds dated 20.06.2015 and 09.07.2019 and therefore plaintiff is not bound by the same.... defendant no.2 himself has not signed it; Shri Rahul Gupta and Shri Mohit Gupta have also not signed it. Neither the Plaintiff nor Shri Kamal Kumar Gupta or Smt. Veena Gupta have either the original or a copy of the Deed dated 20.06.2015. Plaintiff's corporate records do not contain either the original or a copy of the Deed dated 09.07.2019." c. He has further submitted that the disputes which the petitioners seek to raise is subject matter of CS(Commercial) No. 1551/2021, where filing of an application under Section 8 of the A&C Act stands 9 (1955) 1 SCR 876 10 2019 SCC Online Del 10764 11 1983 SCC Online Del 193 12 (2022) 7 SCC 90. Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 12 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 waived by the petitioners. d. He also submitted that Ld. DRT, Delhi has passed certain orders in respect of the properties that are dealt with in the FSD, restraining the defendants therein (which include some of the respondents herein) from alienating or creating any sort of encumbrance on the properties. He emphasized that the terms of the FSD are in violation of order of injunction and transfer of any immovable property in violation of order of injunction would be no transfer in the eyes of law. He also emphasized that the arbitral tribunal has no jurisdiction to affect the rights and remedies of third party secured creditors in the course of determining issues pending before it. In this regard, reliance was placed on Vinod Kumar Sachdeva v. Ashok Kumar Sachdeva (supra), State Bank of India v Ericsson India Private Limited & Ors. 13, Pralhad Jaganath Jawale v. Sitabai Chander Nikam 14, Keshrimal Jivji Shah v. Bank of Maharashtra 15 and Satyabrata Biswas and Ors v. Kalyan Kumar Kisku & Ors16. e. He submitted that in view of the above submissions, the claims of the petitioners fall in the category of "deadwood claims" and therefore should not be referred to arbitration. He also submitted that FSD being a void agreement cannot be referred to arbitration. In this regard, reliance was placed on Vidya Drolia & Ors. v. Durga Trading 13 (2018) 16 SCC 617 14 2011 4 Mah. LJ 15 2004 3 Mh LJ 393 16 (1994) 2 SCC 266 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 13 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Corpn.17, Emaar India Ltd. v. Tarun Aggarwal Projects LLP & Anr. 18, NTPC Ltd. v. SPML Infra Ltd.19, and Sukanya Holdings (P) Ltd. v. Jayesh H. Pandya & Anr.20. f. He further submitted that FSD containing the arbitration clause is not properly stamped and therefore FSD is bound to be impounded in view of decision of N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. & Ors.21, and Splendor Landbase Ltd. v. Aparna Ashram Society22. g. He emphasized that the arbitration clause only pertains to interpretation and not implementation of the FSD. He argued that jurisdiction to decide any disputes between the parties connected with the FSD lies only with the civil court in view of Clause 17 of FSD. h. He also emphasized that merely keeping the assets of intervenor companies out of the scope of arbitration proceedings does not sufficiently protect the intervening companies. He submitted that Clause VII of the FSD itself prohibits any alteration of FSD. He also submitted that if the disputes arising from FSD are referred to arbitration, the intervenors will be rendered remediless at every subsequent stage. i. Lastly, he has submitted that since the intervenor companies have now filed a suit [CS(OS) 581/2023] seeking to declare the FSDs as null and void, the reference to arbitration ought to be rejected. It 17 (2021) 2 SCC 1 18 2022 SCC OnLine SC 1328 19 (2023) 9 SCC 385 20 (2003) 5 SCC 531 21 (2023) 7 SCC 1 22 2023 SCC OnLine Del 5148 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 14 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 was submitted that an interim injunction application restraining the Pawan Gupta Group and Kamal Gupta Group from acting on the FSD has been filed in the said suit. 12. Learned senior counsel for the petitioners has submitted that both the petitioners and respondents acknowledge the existence of the arbitration agreement. Therefore, the dispute should be referred to arbitration. In this regard reliance has been placed on Duro Felguera, S.A. v. Gangavaram Port Ltd. 23, Vidya Drolia (supra) and Intercontinental Hotels Group (India) (P) Ltd. & Anr. v. Waterline Hotels (P) Ltd.24. He submitted that Section 89 of the CPC empowers the court, along with Section 151 of the CPC, to refer parties to arbitration based on a joint memorandum, as held in Afcons Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd. & Ors 25. He also emphasized that the courts generally favour upholding family arrangements and avoid disrupting them on technicalities. Clause VII of the FSD clarifies that the Kamal Gupta Group assumes Rahul Gupta's liabilities. He submitted that any claim by Rahul Gupta should be addressed independently against his father, Kamal Gupta, outside these proceedings. It was submitted that the court should not allow technical objections raised by Rahul Gupta to hinder the implementation of the FSD. In this regard reliance has been placed on Kale & Ors. v. Director of Consolidation & Ors.26, K.K. Modi & Ors. v. K.N. Modi & Ors.27, Hari Shankar Singhania (2) & Ors. v. Gaur Hari Singhania & Ors. 28 and Ravinder Kaur Grewal and Ors v. 23 (2017) 9 SCC 729 24 (2022) 7 SCC 662 25 (2010) 8 SCC 24 26 (1976) 3 SCC 119 27 (1998) 3 SCC 573 28 (2006) 4 SCC 658 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 15 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 Manjit Kaur and Ors.29. It was argued that the objection regarding a pending civil suit [CS(Comm.) 1551/2021] before Ld. Judge, Tis Hazari Courts cannot obstruct the referral of present disputes to arbitration. He submitted that objections under Section 8 of the A&C Act have already been raised in that suit. He contended that while the FSDs are duly stamped on a Rs.100 stamp paper, as per well settled legal principles, family settlements recording factum of oral partition do not require mandatory stamping. Lastly, he has submitted that any potential asset transfers under the FSDs will naturally be subject to existing charges or mortgages. It is submitted that the arbitration process can effectively address these concerns. 13. Learned senior counsel for the respondents submitted that while the petitioners have breached the FSD, the respondents do not oppose referring the disputes to arbitration. It was further submitted that Rahul Gupta's intervention applications lack merit and should be dismissed. He submitted that the Pawan Gupta Group and Kamal Gupta Group, through a joint memorandum, have limited their claims and counterclaims to companies and assets where they hold majority ownership. This, he argued, demonstrates that the arbitration proceedings will not prejudice Rahul Gupta's rights. It was submitted that Rahul Gupta holds minority shares in only two of the companies proposed to be referred to arbitration (PP Jewellers Pvt. Ltd. and Vasant Associates Pvt. Ltd.). He asserts that as a minority shareholder, Rahul Gupta cannot object to the majority's decision to pursue arbitration. It was emphasized that the arbitral award will solely bind the Pawan Gupta Group and Kamal Gupta Group in respect of their internal disputes. Rahul Gupta, he maintained, will not be bound by the award to the extent that it 29 (2019) 8 SCC 729 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 16 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 infringes upon his legitimate interests. He argued that accepting Rahul Gupta's position would effectively paralyze any potential arbitration arising from a Family Settlement Agreement, allowing a single family member to obstruct the process even when the majority desires a resolution through arbitration. It was clarified that the companies involved are not seeking a merger, demerger, or amalgamation, but are merely having their rights established through arbitration. Therefore, he contended that the NCLT lacks jurisdiction to adjudicate matters pertaining to the FSD. He pointed out that the Kamal Gupta Group has shifted its initial stance and now supports implementing the FSD for the greater good of the family group. He submitted that arbitration will lead to a swift dispute resolution within the family, contrasting it with the lengthy process of a partition suit. In respect to the DRT orders, he submitted that any arbitral award would be subject to existing restraint orders issued by the DRT. He also submitted that FSD is not required to be stamped. Lastly, he argued that the suit filed by the intervening companies is a classic example of a deliberate attempt to obstruct the legal process, particularly the arbitration proceedings. Analysis and Findings 14. At the outset, it may be noted that in terms of the settled legal position the scope of jurisdiction of a referral court is confined to examination of the formal existence of an arbitration agreement. In Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re 30, a seven-judge bench of the Supreme Court has held as under: "162. The legislature confined the scope of reference under Section 30 2023 SCC OnLine SC 1666 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 17 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 11(6A) to the examination of the existence of an arbitration agreement. The use of the term "examination" in itself connotes that the scope of the power is limited to a prima facie determination. Since the Arbitration Act is a self-contained code, the requirement of "existence" of an arbitration agreement draws effect from Section 7 of the Arbitration Act. In DuroFelguera (supra), this Court held that the referral courts only need to consider one aspect to determine the existence of an arbitration agreement - whether the underlying contract contains an arbitration agreement which provides for arbitration pertaining to the disputes which have arisen between the parties to the agreement. Therefore, the scope of examination under Section 11(6A) should be confined to the existence of an arbitration agreement on the basis of Section 7.Similarly, the validity of an arbitration agreement, in view of Section 7, should be restricted to the requirement of formal validity such as the requirement that the agreement be in writing. This interpretation also gives true effect to the doctrine of competence-competence by leaving the issue of substantive existence and validity of an arbitration agreement to be decided by arbitral tribunal under Section 16. We accordingly clarify the position of law laid down in Vidya Drolia (supra) in the context of Section 8 and Section 11 of the Arbitration Act." 15. In the present case, a bare perusal of the FSD makes it prima facie evident that an arbitration agreement exists between the parties to the FSD. Further, the joint application filed in the present proceedings itself is an arbitration agreement between the parties to the present petitions, as it satisfies the requirement of Section 7 of the A&C Act. By way of the joint application, the petitioners and respondents have recorded their consent to submit their disputes arising from the FSD to arbitration. In view of the said position, I see no impediment in appointing a sole arbitrator to adjudicate the disputes between the signatories to the joint application. 16. I have considered the submissions of Mr. Rahul Gupta and the intervenor companies, I find no merit in the same. The reasons are enumerated hereunder. 17. The apprehension of the intervenors that in the proposed arbitration the parties will deal with the properties of intervenors since the same have Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 18 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 been mentioned in the FSD is misplaced. A categorical statement has been made by learned senior counsel for petitioners and respondents that none of the properties owned by the intervenor companies, though mentioned in annexures of the FSD, will be dealt/divided by the said parties in the arbitration. Even assuming the arbitrator deals with the property of intervenor companies, in view of Section 35 of the A&C Act, the resultant arbitral award would not be binding on the intervenors. The intervenors/third party thus can be permitted to intervene in enforcement proceedings and raise necessary pleas to resist execution/enforcement of the arbitral award affecting its right. 18. In the facts of the present case, it cannot be said that the arbitral proceedings will be futile, ineffective, and would be a no result exercise. The intent of Pawan Gupta Group and Kamal Gupta Group when they executed FSD, was to settle their inter se disputes while at the same time not affecting the rights and interest of Mr. Rahul Gupta. The presence of Mr. Rahul Gupta and intervenor companies before the arbitrator is not essential for adjudication of disputes between the said two groups. For the said reason, the decision in South India Biblical Seminary (supra) is distinguishable. The decision of Vinod Kumar Sachdeva (supra), wherein the order of the High Court allowing an application under Section 8 of the A&C was reversed by the Supreme Court, is inapplicable to the facts of the present case since in that case the plaintiff had sought reliefs against non- signatories to the concerned agreement. It was held that non-family shareholdings, who are not parties to the MoU, cannot be bound by the terms of the document. In the present case, the petitioners have sought reliefs only against signatories to the FSD and companies in which Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 19 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 signatories to the FSD have majority shareholding, and which companies have also consented to be bound by the arbitration agreement by appending their signatures to the joint application. 19. Further, among the signatories companies proposed to be referred to arbitration, only in PP Jewellers Pvt. Ltd. and Vasant Associates Pvt. Ltd, Mr. Rahul Gupta has a minority shareholding. The said companies through a board resolution has agreed to participate in the arbitration. This resolution is binding on all the members including minority shareholders. Therefore, Mr. Rahul Gupta cannot object to the said companies being referred to arbitration. 20. Further, the contention that the resultant arbitral award will itself injure the right of the intervenors is misconceived. The arbitral award will at best declare the right of a person over a particular family property. If a particular family property is owned by a company, the same can only be sold/transferred after following the procedure under the Companies Act. The day to day management of a company is run through its Board of Directors, while major decisions of a company are taken by its shareholders. Since shareholders/directors of the said companies are the family members themselves they can give effect to (or reject) the FSD. That stage is yet to be reached. The objection by a shareholder opposing such transfer, as may be available in law, can only be raised at that stage. 21. Furthermore, the FSD is not a "compromise or arrangement" between a company and its members within the meaning of Section 230 of the Companies Act. In fact FSD has not been signed by the companies. Therefore, technically, the FSD is not binding on the companies. Precisely to overcome this hurdle some companies have expressly consented to Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 20 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 participate in arbitration proceedings. The FSD does not contemplate division of the assets of any particular company but rather records the prior division of the family assets and liabilities between the family members. The judgment of Sanjay Kapur (supra), wherein it has been held that the restructuring of a company has to happen mandatorily in accordance with the provisions of the Companies Act and the same cannot be left to be determined by a private agreement between certain groups of shareholders, is clearly not applicable to the facts of the present case. In the present case, firstly, the FSD does not contemplate restructuring of a company and secondly, the companies are closely held and/or private limited companies which was not the situation in that case. It was inter alia observed in the said decision as under: "68. The Company is a separate entity and is governed by the provisions of the Companies Act, 1956 (and presently by the Companies Act, 2013). The essential legal position that the shareholders of the Company are not the owners of its assets and that there cannot be an agreement between the shareholders for any group to divide the assets of the Company does not appear to have been acknowledged by the parties at the time of entering into either the 1999 or the 2003 MoU. The Kapurs have a cumulative shareholding of 45% of the company Atlas Cycles (Haryana) Limited, which is a public limited company which has over 12,000 shareholders. It is not a private limited company or a closely held company as was the case, for instance, in Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad (supra). The observations in that judgement that the principles of quasi partnership can be applied even to a public limited company have to be understood in the context of the facts of that case. In the same decision in para 226 it was observed that a clear distinction is to be made between a family company, a private company and a public limited company." 22. Therefore, it cannot be said that the disputes sought to be raised by the petitioners are within the exclusive jurisdiction of NCLT. 23. Further, it is well settled that unlike commercial contracts which focus on business interests, family settlements aim to preserve peace and goodwill Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 21 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 within the family. This social objective is recognized by courts, and it has been held in umpteen judgments that it is the duty of the courts to uphold and give full effect to such an arrangement instead of disturbing the same on technical or trivial grounds. In Kale v. Dy. Director of Consolidation (supra), it has been held as under: "9. ... By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus: "The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend." The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spessuccessionis so that future disputes are sealed for ever and the family instead of fighting claims inter Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 22 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements." xxx xxx xxx 19. Thus it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds. 24. In K.K. Modi v. K.N. Modi (supra), it has been held that a family Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 23 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 settlement arrived at between two groups belonging to the same family regarding division of assets should not be lightly interfered with by a Court especially when it has been substantially acted upon by the parties. 25. In Hari Shankar Singhania (2) v. Gaur Hari Singhania (supra), it has been held as under: "Family arrangement/family settlement 42. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the courts. Such settlements are governed by a special equity principle where the terms are fair and bona fide, taking into account the well-being of a family. 43. The concept of "family arrangement or settlement" and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation, etc. should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into to allay disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in Ram Charan Das v. Girjanandini Devi. 44. In Lala Khunni Lal v. Kunwar Gobind Krishna Narain the Privy Council examined that it is the duty of the courts to uphold and give full effect to a family arrangement. 45. In SahuMadho Das v. PanditMukand Ram (Vivian Bose, Jagannadhadas and B.P. Sinha, JJ.) placing reliance on Clifton v. Cockburnand Williams v. Williams this Court held that a family arrangement can, as a matter of law, be implied from a long course of dealings between the parties. It was held that: (SCR p. 43) "[S]o strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement...." Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 24 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 46. The real question in this case as framed by the Court was whether the appellant-plaintiff assented to the family arrangement. The Court examined that "the family arrangement was one composite whole in which the several dispositions formed parts of the same transaction". 47. In Ram Charan Das v. Girjanandini Devi this Court observed as follows: (SCR pp. 850 G-851 B) "Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. ... The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another." 48. In MaturiPullaiah v. MaturiNarasimham this Court held that: (AIR p. 1841, para 17) "[T]hough conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, courts will more readily give assent to such an arrangement than to avoid it." 49. Further, in Krishna Beharilal v. Gulabchandthis Court reiterated the approach of the courts to lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all. This approach was again re-emphasised in S. Shanmugam Pillai v. K. Shanmugam Pillaiwhere it was declared that this Court will be reluctant to disturb a family arrangement. 50. In Kale v. Dy. Director of Consolidation (V.R. Krishna Iyer, R.S. Sarkaria and S. Murtaza Fazal Ali, JJ.) this Court examined the effect and value of family arrangements entered into between the parties with a view to resolving disputes for all. This Court observed that: (SCC pp. 125-26, para 9) "By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 25 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. ... The object of the arrangement is to protect the family from long drawn litigation or perpetual strives which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. ... The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement.... The law in England on this point is almost the same." 51. The valuable treatise Kerr on Fraud at p. 364 explains the position of law: "The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend." Halsbury's Laws of England, Vol. 17, 3rd Edn. at pp. 215-16. 52. In K.K. Modi v. K.N. Modi (Sujata Manohar and D.P. Wadhwa, JJ.) it was held that the true intent and purport of the arbitration agreement must be examined (para 21). Further, the Court examined that: (SCC pp. 594- 95, para 52) "[A] family settlement which settles disputes within the family should not be lightly interfered with especially when the settlement has been already acted upon by some members of the family. In the present case, from 1989 to 1995 the memorandum of understanding has been substantially acted upon and hence the parties must be held to the settlement which is in the interest of the family and which avoids disputes between the members of the family. Such settlements have to be viewed a little differently from Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 26 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 ordinary contracts and their internal mechanism for working out the settlement should not be lightly disturbed." 53. Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements. 26. Therefore, prima facie, it cannot be said that the subject matter of the FSD is non-arbitrable. 27. Reliance placed by the intervenors on certain orders passed by Ld. DRT to contend that the arbitration proceedings will be in violation of said orders, is misplaced. Vide said orders, some of the properties mentioned in the FSD - which were mortgaged with banks - have been restrained from being alienated or encumbered. Merely by executing the FSD, the parties have not transferred the properties. Further, as already stated above, the resultant award will only declare the right of a person over a particular family property and will not itself lead to transfer of the property. There is no quarrel with the proposition laid down in Ericsson Indian (supra) that an arbitral tribunal has no jurisdiction to affect rights and remedies of third party secured creditors in the course of determining disputes pending before it, and the proposition laid down in Pralhad Jaganath (supra), Keshrimazl Jivji Shah (supra) and Satyabrata Biswas (supra) that transfer of immovable property in violation of order of injunction is no transfer in the eye of laws; but the said decisions are not applicable to the facts of the present case. Certainly, after arbitration, if the properties are to be inter se transferred between the parties, the same shall be done keeping in mind the subsisting orders passed by Ld. DRT. 28. There is also no merit in the submission that since the intervenors Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 27 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 companies have filed a suit [CS (OS) 581/2023] seeking a declaration that the FSD is nullity/void agreement, the parties to the FSD cannot be referred to arbitration. The Supreme Court in Today Homes & Infrastructure (P) Ltd. v. Ludhiana Improvement Trust & Anr.31 has reiterated that an arbitration clause stands independent of the main agreement and does not necessarily become otiose, even if the main agreement, of which it is a part, is declared void. Relevant extract of the said judgement are as under: "13. We have carefully considered the submissions made on behalf of the respective parties and we are of the view that the learned Designated Judge exceeded the bounds of his jurisdiction, as envisaged in SBP & Co. In our view, the learned Designated Judge was not required to undertake a detailed scrutiny of the merits and demerits of the case, almost as if he was deciding a suit. The learned Judge was only required to decide such preliminary issues such as jurisdiction to entertain the application, the existence of a valid arbitration agreement, whether a live claim existed or not, for the purpose of appointment of an arbitrator. By the impugned order, much more than what is contemplated under Section 11(6) of the 1996 Act was sought to be decided, without any evidence being adduced by the parties. The issue regarding the continued existence of the arbitration agreement, notwithstanding the main agreement itself being declared void, was considered by the seven-Judge Bench in SBP & Co. andit was held that an arbitration agreement could stand independent of the main agreement and did not necessarily become otiose, even if the main agreement, of which it is a part, is declared void. 14. The same reasoning was adopted by a member of this Bench (S.S. Nijjar, J.), while deciding Reva Electric Car Co. (P) Ltd. v. Green Mobil, wherein the provisions of Section 16(1) in the backdrop of the doctrine of kompetenzkompetenz were considered and it was inter alia held that under Section 16(1), the legislature makes it clear that while considering any objection with regard to the existence or validity of the arbitration agreement, the arbitration clause, which formed part of the contract, had to be treated as an agreement independent of the other terms of the contract. Reference was made in the said judgment to the provisions of Section 16(1)(b) of the 1996 Act, which provides that even if the Arbitral Tribunal concludes that the contract is null and void, it should not result, as a matter of law, in an automatic invalidation of the arbitration clause. It was also held that Section 16(1)(a) of the 1996 Act presumes the 31 (2014) 5 SCC 68 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 28 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 existence of a valid arbitration clause and mandates the same to be treated as an agreement independent of the other terms of the contract. By virtue of Section 16(1)(b) of the 1996 Act, the arbitration clause continues to be enforceable, notwithstanding a declaration that the contract was null and void. 15. In our view, the learned Designated Judge misunderstood the scope of the order dated 14-10-2008, passed in the earlier proceedings and the provisions of Section 16 of the 1996 Act in going into a detailed examination regarding the merits of the case and the existence of an arbitration agreement and in holding that once the main agreement between the parties was declared void, the entire contents thereof, including any arbitration clause that may have been incorporated in the main agreement, were rendered invalid." 29. The findings of the Ld. Judge, Tis Hazari Courts that the FSD dated 20.06.2015 and 09.07.2019 are not binding on plaintiff therein (P.P. Jewellers Private Limited i.e. one of the respondent herein), and rather are nullity in the eyes of law, were issued in an interim application in suit alleging infringement of trademark and passing off. The issue of whether the FSDs are nullity was not directly in issue before the concerned court. In any case, these preliminary findings are not the final findings of the Court. An appeal against the said order is also pending before a Division Bench of this Court. Further, the subject matter of the suit / disputes pending before the Ld. Judge, Tis Hazari Courts is materially different from the disputes (distribution of family assets) that are sought to be referred to arbitration by the petitioners herein. In any case, all these aspects would be considered and taken into account, by a duly constituted arbitral tribunal. 30. There is also no merit in the contention that the petitioner no.1 has waived his right to seek a reference to arbitration since no application under Section 8 of the A&C Act has been filed by the petitioner no.1 in the said case pending before the Ld. Judge, Tis Hazari Courts. It is noticed that the Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 29 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 petitioner no.1 has taken objection in its written statement to the jurisdiction of the court to entertain the suit due to the presence of the arbitration clause between the parties; in terms of the settled law32, this amounts to sufficient compliance of Section 8 of the A&C Act. 31. There is also no merit in the contention that allowing the present Section 11 petition will lead to bifurcation of the cause of action in suit pending before the Ld. Judge, Tis Hazari Courts or in the suit now filed by the intervenor companies. The disputes that are sought to be raised by the petitioners herein are evidently not subject matter of the said suits. 32. Learned senior counsel for intervenors has also contended that the FSD are insufficiently stamped and thus the arbitration clause therein is not enforceable till the FSD is duly stamped. However, the said objection is no longer tenable in view of the decision of the Supreme Court in Interplay between Arbitration Agreements under the Arbitration & Conciliation Act, 1996 & the Indian Stamp Act, 1899, In re (supra). 33. Further, the contention that the disputes are to be adjudicated in "Courts at Delhi" as per Clause 17 of the FSD since the arbitration clause only deals with the interpretation of the FSD is ex-facie wrong. A bare perusal of the arbitration clause reveals that any dispute or difference "arising out" of the FSD is to be settled by a sole arbitrator. Further, it is well settled that if there is any contractual stipulation which undermines the scope of arbitration clause contained in any contract, the same will be accorded an interpretation which gives full effect to the arbitration agreement between the parties 33. It is also well settled that there is 32 See: Madhu Sudan Sharma v. Omaxe Ltd., 2023 SCC OnLine Del 7136, para 44 33 Sunita Garg v. Scraft Product (P) Ltd., 2023 SCC OnLine Del 1093 Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 30 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 presumption in favour of one-stop adjudication of disputes. 34. Accordingly, IA Nos. 18217/2023 & 13282/2023 in ARB.P. 1010/2022 and IA No. 12227/2023 in O.M.P.(I) (COMM.) 198/2023, i.e., intervention applications filed by Mr. Rahul Gupta and intervenors companies through its authorized representative Mr. Rahul Gupta are dismissed. Conclusion 35. In view of the aforesaid, there is no impediment in appointing an independent sole arbitrator to adjudicate the disputes between the signatories to the joint application. 36. Accordingly, Mr. Justice (Retd.) Sanjay Kishan Kaul, Former Judge, Supreme Court of India, (Mob. No.: 9818000370) is appointed as the Sole Arbitrator to adjudicate the disputes between the parties. 37. The parties shall be entitled to raise appropriate preliminary objections as regards jurisdiction/arbitrability, which shall be decided by the learned arbitrator, in accordance with law. 38. The learned Sole Arbitrator may proceed with the arbitration proceedings subject to furnishing to the parties requisite disclosures as required under Section 12 of the A&C Act. 39. The learned Sole Arbitrator shall fix his fee in consultation with the parties. 40. The parties shall share the arbitrator's fee and arbitral costs, equally. 41. O.M.P.(I) (COMM.) 198/2023 i.e. the petition under Section 9 of the A&C Act is directed to be treated as application under Section 17 of the A&C Act to be decided by the learned sole arbitrator, in accordance with law. Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 31 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32 42. All rights and contentions of the parties in relation to the claims/counter-claims are kept open, to be decided by the learned Arbitrator on their merits, in accordance with law. 43. Needless to say, nothing in this order shall be construed as an expression of this court on the merits of the case. 44. The present petitions stand disposed of in the above terms. 45. All pending applications also stand disposed of. MARCH 22, 2024/HG SACHIN DATTA, J Signature Not Verified Digitally Signed ARB.P. 1010/2022 & O.M.P.(I) (COMM.) 198/2023 Page 32 of 32 By:KAMLA RAWAT Signing Date:22.03.2024 18:51:32