Delhi District Court
M/S. Triveni Adhesive Tapes vs Sh. Ramesh Jaina on 13 April, 2015
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT JUDGEII
(CENTRAL DISTRICT): TIS HAZARI COURTS: DELHI
CS No. 44/2010
Unique Case ID No.: 02401C0127512010
M/s. Triveni Adhesive Tapes
B92, Sector5,
NOIDA, Uttar Pradesh
(Through its Partner)
........... Petitioner
Versus
1. Sh. Ramesh Jaina
Arbitrator
M/s. Paper Merchants Association (Regd.)
132, Gali Batashan, Chawri Bazar,
Delhi - 110006
2. Mr. Shashi Jain
Proprietor of M/s. Parash Nath Associates,
2217, Gali Hanuman Prasad,
Masjid Khazoor,
Delhi - 110006
......... Respondents
Date of Institution: 31.3.2010
Date on which orders were reserved: 13.4.2015
Date on which order pronounced: 13.4.2015
JUDGMENT (Oral):
These objections under Section 34 of the Arbitration and Conciliation Act, 1996 have been filed by the petitioner M/s. Triveni Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 1 of 8 Adhesive Tapes for setting aside the impugned exparte award dated 14.12.2009 passed by the respondent no.1 Arbitrator, which objections are pending disposal before this Court since March 2010. It is pleaded that there existed certain disputes between the petitioner and the respondent no. 2 who is a member of Paper Merchants Association (Regd.) Delhi. It is also pleaded that the goods with respect to disputed bills No. RO41, RO45, RO49, RO51, RO56 and RO59 amounting to Rs.30,27,631/ were never supplied by the respondent no.2 to the petitioner nor the petitioner had ever issued the mandatory Statutory Form No. 31 and CForm for the supply of the alleged goods. It is further pleaded that the petitioner has not claimed any Modvate Rebate which is available on the purchase of excisable goods. It is pointed out that the case had been referred by the respondent no.2 for Arbitration being a member of the Paper Merchants Association and in view of the terms and conditions printed on the sale bills providing that in case of any dispute including dispute of non payment in respect of the bill, the same shall be referred to the Paper Merchants Association (Regd.) Delhi for Sole Arbitration and the judgment given by the Arbitrator/ Arbitrators appointed by the Executive Committee shall be final and binding on both the parties. The case of the plaintiff is that the sale bills is not an agreement nor the contract between the parties and the matter unilaterally and arbitrarily printed on the Sale Bill cannot be construed to be an Arbitration Agreement. The petitioner has challenged the very appointment of the respondent no.1 as the Sole Arbitrator and the issuance of notice to the Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 2 of 8 petitioner. It is stated that after receiving the notice the petitioner vide its communication dated 23.6.2009 through its counsel Dr. A.N. Aggarwala (Advocate) had raised certain objections with regard to the maintainability of the said case No. 20082009/23 and jurisdiction of the Arbitrator and had also challenged his appointment as an Arbitrator. It is also pleaded that certain documents were sought by the petitioner from the Arbitrator to enable the petitioner to file a proper reply but the respondents did not care to reply either to the notice nor they supplied the relevant documents to the petitioner to enable him to put up his case before the Arbitrator.
The record reveals that on 14.12.2009 the Arbitrator passed the exparte award in favour of the respondent no.2 and aggrieved by the same now the same is under challenge before this Court on the ground that Firstly there is no Arbitration Agreement between the parties; Secondly that the Arbitrator/ Respondent no.1 was devoid of any jurisdiction; Thirdly that the impugned award had been unilaterally and arbitrarily passed exparte in as much as the terms and conditions printed on the sale bill, which is not signed by the petitioner cannot be considered to be an Arbitration Agreement and hence the composition of the Arbitration Tribunal was not in accordance with the agreement of the parties; Fourthly that the respondent no.2 had never issued any notice to the petitioner seeking the appointment of the Arbitrator in terms of the observations of the Hon'ble Supreme Court in the case of Dattan Switen Gears Ltd. Vs. TATA Finance Ltd. reported in 2000 (8) SCC 151 and Lastly that the Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 3 of 8 impugned award passed by the Arbitrator is without application of judicial mind and is illegal and arbitrary.
I have considered the submissions made before me and at the very Outset I may observe that none had been appearing for the petitioner for the last many dates and the matter had been relisted time and again for arguments on behalf of the petitioner. Even on 9.4.2015 the matter was listed for hearing the arguments on behalf of the petitioner but none had appeared and the matter was kept for today i.e. 13.4.2015 for enabling him to file their written arguments which has not been done despite opportunity.
Secondly it is highly improper that the respondent no.1 who has been performing his duties as an Arbitrator has been made the main contesting party.
Thirdly it is alleged by the petitioner that they made some complaint against the respondent no.1 before the Competition Commission of India but I am now informed that the said complaint has been dismissed by the Commission vide order dated 13.7.2011 and hence under the given circumstances no adverse inference can be drawn against the respondent no. 1 and the allegations of abuse and misuse of his dominant position does not hold any merit.
Fourthly it is a settled law that once the jurisdiction of the Arbitrator has been challenged it is for the Arbitrator himself to decide upon the said jurisdiction (reference is made to Section 16 of the Arbitration and Conciliation Act, 1996 since the objection with regard to the jurisdiction of Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 4 of 8 Arbitrator has been raised the same was decided by the Ld. Arbitrator during the Arbitration proceedings in which the petitioner/ objector deliberately kept away).
Fifthly the Ld. Arbitrator while considering the grounds so raised, has arrived at a just conclusion that on the basis of the bills not only which the petitioner has denied before this Court but also which he has admitted i.e. Bill No. RO17 dated 10.2.2007 for a sum of Rs.6,04,498/ and Bill No. RO24 dated 20.2.2007 for Rs.6,06,578/ containing the printed Arbitration Clause which has never been challenged by the petitioner previously. The Arbitration Clause has been printed in all the invoices against which the goods had been supplied and these bills had been signed by the petitioner in token of their acceptance and it was for this reason that the Ld. Arbitrator had rejected the plea of the appellant and hold that he had the jurisdiction. The objection raised by the petitioner/ objection has been put to rest by the observations made by the Delhi High Court in the case of Schjolar Pulishing House Pvt. Ltd. Vs. M/s. Khanna Traders reported in 2013 (3) Arb.LR 105 (Delhi) and in the case of Bharat Steel Tubes Vs. State of Bihar reported in 1993 Arb.LR 120. I find no reason to discard the findings of the Ld. Arbitrator in this regard and the Sixthly in so far as the allegations of forgery of bills/ invoices are concerned, the said objection had never been taken by the petitioner/ objector before the Ld. Arbitrator or before the Competition Commission of India and hence the same appeared to be an after thought and cannot be Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 5 of 8 permitted to be raised at this stage. Even otherwise the objector is apparently taking contrary stand since at one place in para 13 he claimed that the original bills are in his possession and he alone can produce the said bills whereas at the other place he states that he has not received the said bills nor the goods and hence under the given circumstances, it is not possible that he would not be in possession of the original bills.
Seventhly perusal of the arbitration proceedings show that the petitioner/ objector had been validly served by the Ld. Arbitrator and the petitioner/ objector had filed his response before the Arbitrator by post vide letter dated 26.9.2009 along with Vakalatnama of his counsel, which response is present on the record of Arbitrator, but thereafter did not participate in the proceedings and deliberately himself kept away from the proceedings and it was in this background that the Ld. Arbitrator had compelled to proceed exparte and only thereafter the claims had been decided by the Arbitrator by affording an opportunity to the claimant to lead his evidence and the issues in question had been decided after examining the account of the ledger of the claimant/ respondent no.2 confirming that the respondent no.2 had to take Rs.40,13,882/ from the present petitioner. The Ld. Arbitrator had also concluded that the petitioner had not given C Forms to the respondent no.2 against bill amount of Rs.78,76,894/ on which the additional CST comes to Rs.2,42,339/ and hence it is in this background that the award to a total amount of Rs.48,42,284/ (Rs. 40,13,882/ as principal amount + Rs.8,28,402/ as interest @ 18% per Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 6 of 8 annum) was passed.
Eighthly in so far as the allegations of forgery of bills/ invoices are concerned, the said objection had never been taken by the petitioner/ objector before the Ld. Arbitrator or before the Competition Commission of India and hence the same appeared to be an after thought and cannot be permitted to be raised at this stage. Even otherwise the objector is apparently taking contrary stands since on the one hand in para 13 he claims that the original bills were in his possession and he alone can produce the said bills whereas at the other place he states that he has not received the said bills nor the goods and hence under the given circumstances, it is not possible that he would not be in possession of the original bills.
Lastly the petitioner has failed to bring his case within the provisions of Section 34 (2) of the Arbitration and Conciliation Act, 1996 and to establish that he was in some incapacity; or that the Arbitration agreement was not valid; or that he was not given a proper notice or was otherwise unable to present his case; or that the arbitral award dealt with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. The petitioner has also failed to establish that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement between the parties or that the subject matter of the dispute was not capable of settlement by arbitration under the law for the time being in force or that the arbitral Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 7 of 8 award was in conflict with the public policy of India.
In view of the aforesaid, I find no ground to intervene. The objections filed by the petitioner under Section 34 of the Arbitration and Conciliation Act, 1996 are hereby dismissed.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 13.4.2015 ADJII(CENTRAL)/ DELHI Triveni Adhesive Tapes Vs. Ramesh Jaina & Anr., CS No. 44/2010 Page No. 8 of 8