Court No. - 59
Case :- ARBITRATION AND CONCILI. APPL.U/S11(4) No. - 36 of 2008 Applicant :- Udai Veer Singh Opposite Party :- Indus Ind Bank Ltd.
Counsel for Applicant :- Akhilesh Kumar,Amit Malik,B. Balik,B. Malik,Vikas Mani Srivastava Counsel for Opposite Party :- G.K. Pandey,Girijesh Kumar Tripathi,Pranjal Mehrotra,Sanjay Kumar Dubey
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri B. Malik, Advocate assisted by Sri Amit Malik, learned counsel for the applicant and Sri Pawan Kumar Mishra, Advocate, holding brief of Sri Pranjal Mehrotra, learned counsel for the opposite party.
2. The present application has been filed by the applicant - Udai Veer Singh, seeking appointment of an arbitrator with respect to eight disputes claimed to be existing between Udai Veer Singh (including three agreements wherein he is the principal borrower and five agreements wherein the principal borrowers are Sachin Ahlawat and Anju Ahlawat and the applicant-Udai Veer Singh is a guarantor).
3. In short, it is an admitted case between the parties that the aforesaid 8 loan agreements had been executed by the opposite party to provide for finance to the respective borrowers for purchase of truck chassis. The loan was to be repaid in 46 equated monthly installments of about Rs.32,000/- against each loan agreement. The applicant claims that it paid 11 installments. Thereafter, parties entered into some dispute. Whereas the applicant claims the default has occurred on conduct of the opposite party, the opposite party would submit that the applicant was bound to make repayments strictly in terms of the loan agreement. Insofar as there was a default, the loan had been recalled and the applicant made liable for the entire over due amount.
4. It is in this context that learned counsel for the applicant relied on clause 23.0 of the loan agreement which is identical in all cases. Thus, it has been submitted that there exists an arbitration clause and that the applicant had served a notice on the opposite party for appointment of the arbitrator. Though certain proceedings were conducted by the earlier arbitrator appointed by the opposite party, however, the same have remained inconclusive.
5. In that regard, the applicant claims to have issued a notice to the opposite party on 24.03.2008 for appointment of the arbitrator and thereafter the present application has been filed.
6. In these proceedings, a counter affidavit has been filed by the opposite party wherein paragraph 34 of the said counter affidavit reads as below:
"34. That the content of paragraph no.8 of supplementary affidavit of Arbitration Application is not accepted and denied. In reply to this it is stated that all the concerned parties have been sent the notice by the arbitral tribunal and after proper service of notice arbitral award have been passed in the applicant's and his alleged group members matters. The award also deals with the same contention. For kind perusal of this Hon'ble Court the Photostat copy of award passed in the applicant matter is being filled herewith and marked as Annexure No. CA-2 to this Counter Affidavit."
7. Annexure No. CA-2 annexed to the counter affidavit appears to be the photocopy of the award made by the arbitrator Sri D. Saravanan, Advocate without reference to loan agreements dated 30.06.2008 and 25.03.2010.
8. During the course of hearing, learned counsel for the opposite party has produced copies of similar awards of the arbitrator Sri D. Saravanan in the case of loan advanced to Ms. Anju Ahlawat W/o Sachin Ahlawat dated 25.03.2010 and another award by an arbitrator Mr. Ramasamy in the case of Sachin Ahlawat and Pramod Kumar Gupta dated 05.05.2010. Those have been retained on record and marked as 'X' & 'Y'.
9. The contents of paragraph 34 of the counter affidavit have been replied to by means of paragraph 27 of the rejoinder affidavit, which reads as below:
"27. That the contents of para 34 of counter affidavit as stated are denied in the manner they are stated however the award is a matter of record. It is submitted that no notice for appointment of arbitrator has been served upon applicant/borrowers. Neither the copy of award being passed was served upon the applicant or other borrowers. The contents of para 8 of supplementary affidavit are reiterated and reaffirmed."
10. Thus, the existence of the award as claimed has not been specifically denied by the applicant. Accordingly, at this stage, for the purpose of the present application for appointment of arbitrator it has to be accepted that an award has already been made between the parties. Further submission advanced by learned counsel for the applicant that the said award has been passed without any prior notice to the applicant or that a copy of that award has not been served on the applicant are not matters that may engage the attention of this Court any further.
11. Insofar as the dispute had arisen and an arbitrator had been appointed, which fact had also been informed as is admitted to the applicant vide communication dated 17.04.2008 (annexed as Annexure No. CA-III to the application), no further question survives for consideration for this Court.
12. Further submission advanced by learned counsel for the applicant that the original arbitrator came to be substituted after filing of the present application may also not survive for consideration in the present proceedings inasmuch as it being a case of substitution of the arbitrator, in the first place, the procedure for appointment of the first arbitrator would govern his substitution as well.
13. It has been further submitted that though there were 16 loan agreements, the present order may not bind such all the cases where arbitrator may not have been appointed till date. It is not for the Court to speculate as to that. The loan agreements are of the year 2006 whereas the dispute is stated to have arisen in the year 2008, eleven years thereafter in absence of any other loan agreement being shown, it is difficult to grant any liberty to the applicant at this stage.
14. At present, the matter appears to be closed in view of the observations made above.
15. The present application lacks merit. It stands dismissed accordingly.
Order Date :- 22.8.2019 Abhilash