Appeal No. 328 of 2015 in Arbitration Petition No.1643 of 2014. Case: Birla International Private Limited and Anr. Vs Karvy Financial Services Limited. High Court of Bombay (India)
| Case Number | Appeal No. 328 of 2015 in Arbitration Petition No.1643 of 2014 |
| Counsel | For Appellant: Dr. Birendra Saraf with Ms. Chinmayee Pendse i/b. Vidhii Partners, Advs. and For Respondents: Mr. Mayur Khandeparkar with Mr. Omkar Khaiyam Shaikh i/b. Vikas Salvi & Associates |
| Judges | Anoop V. Mohta & G. S. Kulkarni, JJ. |
| Issue | Arbitration and Conciliation Act, 1996 - Sections 37, 34; Transfer of Property Act, 1882 - Sections 67, 69A; Companies Act, 1956 |
| Judgement Date | January 14, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
G. S. Kulkarni, J.
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This appeal under Section 37 of the Arbitration and Conciliation Act,1996 (for short 'the Act'), arises from the decision of the learned Single Judge dated 6th April,2015 in Arbitration Petition No.1643 of 2014, filed by the Appellants under Section 34 of the Act, whereby the challenge to the Arbitral Award has failed before the learned Single Judge.
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Dr.Saraf, learned Counsel appearing for the Appellants in assailing the impugned order submits that in respect of the Appellants property which was mortgaged with the Respondent, Court Receiver was appointed by an order passed under Section 9 of the Act. The submission is that the Respondents could not have made a monetory claim for the entire amount in the Arbitration Proceedings inasmuch as the Respondent was required to file an independent suit for foreclosure of mortgage under Section 67 of the Transfer of Property Act,1882 read with Order XXXIV of the Civil Procedure Code.
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The second contention as urged by Dr.Saraf, learned Counsel for the Appellants is that there was a Memorandum of Understanding dated August, 2013 between the Appellants and the Respondent by virtue of which the learned Arbitrator could not have proceeded on the original agreement between the parties and ought to have terminated the arbitration proceedings, and thus, on this count also the arbitration proceedings before the learned Arbitrator were vitiated.
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We have heard the learned Counsel for the parties. We have also perused the impugned order and the documents so relied upon and referred by the learned Counsel during the arguments.
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It is an admitted position that the Appellants did not file any written statement before the learned Arbitrator, though the Appellants were served notices from time to time by the learned Arbitrator. Although the Advocate for the Appellants appeared before the learned Arbitrator, adjournments were taken on the ground of settlement and though there was no settlement arrived at between the parties, the Appellants did not file any written statement. Subsequently, the Appellants did not appear before the learned Arbitrator. The learned Arbitrator, therefore, proceeded on the pleadings filed on behalf of the Respondent and the documents produced on record and rendered his Award. It is, therefore, clear that the learned Arbitrator proceeded in consonance with the principles of natural justice in recording the finding of facts, after giving complete...
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