Bombay High Court
Sawarmal Gadodia vs Tata Capital Financial Services Ltd. ... on 15 May, 2019
Author: S.J.Kathawalla
Bench: S.J. Kathawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION NO. 560 OF 2019
Sawarmal Gadodia, adult, Indian inhabitant, )
aged about 80 years, Occupation : Retired, having )
address at Main Road, Ramabahal PR - Rajgangpur, )
District - Sundergarh, Orissa - 770017. )
Through Constitute Attorney Mr. Khyati Prafulkumar )
Desai, aged about 36 years. )...Petitioner / Org.Res.No.2
Versus
1. Tata Capital Financial Services Limited )
(Formerly known as Tata Capital Limited), a )
Company incorporated under the provisions of Indian )
Companies Act, 1956, having its office at Tower A, )
Peninsula Business Park, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013 )...Org. Claimant
2. P.R.Ranjith (Borrower), C/o. Late K.R. Nair, )
At-Kanak Bhawannair Chowk, Rajgangpur, )
District - Sundergarh, Orrisa - 770017 )...Respondents/Org.Res.No.1
ALONG WITH
ARBITRATION PETITION NO. 561 OF 2019
Sawarmal Gadodia, adult, Indian inhabitant, )
aged about 80 years, Occupation : Retired, having )
address at Main Road, Ramabahal PR - Rajgangpur, )
District - Sundergarh, Orissa - 770017. )
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Through Constitute Attorney Mr. Khyati Prafulkumar )
Desai, aged about 36 years. )...Petitioner / Org.Res.No.2
Versus
1. Tata Capital Financial Services Limited )
(Formerly known as Tata Capital Limited), a )
Company incorporated under the provisions of Indian )
Companies Act, 1956, having its office at Tower A, )
Peninsula Business Park, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013 )...Org. Claimant
2. P.R.Ranjith (Borrower), C/o. Late K.R. Nair, )
At-Kanak Bhawannair Chowk, Rajgangpur, )
District - Sundergarh, Orrisa - 770017 )...Respondents/Org.Res.No.1
WITH
ARBITRATION PETITION NO. 562 OF 2019
Sawarmal Gadodia, adult, Indian inhabitant, )
aged about 80 years, Occupation : Retired, having )
address at Main Road, Ramabahal PR - Rajgangpur, )
District - Sundergarh, Orissa - 770017. )
Through Constitute Attorney Mr. Khyati Prafulkumar )
Desai, aged about 36 years. )...Petitioner / Org.Res.No.2
Versus
1. Tata Capital Financial Services Limited )
(Formerly known as Tata Capital Limited), a )
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Company incorporated under the provisions of Indian )
Companies Act, 1956, having its office at Tower A, )
Peninsula Business Park, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013 )...Org. Claimant
2. P.R.Ranjith (Borrower), C/o. Late K.R. Nair, )
At-Kanak Bhawannair Chowk, Rajgangpur, )
District - Sundergarh, Orrisa - 770017 )...Respondents/Org.Res.No.1
WITH
ARBITRATION PETITION NO. 563 OF 2019
Sawarmal Gadodia, adult, Indian inhabitant, )
aged about 80 years, Occupation : Retired, having )
address at Main Road, Ramabahal PR - Rajgangpur, )
District - Sundergarh, Orissa - 770017. )
Through Constitute Attorney Mr. Khyati Prafulkumar )
Desai, aged about 36 years. )...Petitioner / Org.Res.No.2
Versus
1. Tata Capital Financial Services Limited )
(Formerly known as Tata Capital Limited), a )
Company incorporated under the provisions of Indian )
Companies Act, 1956, having its office at Tower A, )
Peninsula Business Park, Ganpatrao Kadam Marg, )
Lower Parel, Mumbai - 400 013 )...Org. Claimant
2. P.R.Ranjith (Borrower), C/o. Late K.R. Nair, )
At-Kanak Bhawannair Chowk, Rajgangpur, )
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District - Sundergarh, Orrisa - 770017 )...Respondents/Org.Res.No.1
Mr.Paresh More a/w. Mr. Akshay Pawar i/b. Mr. S.U.Pandey for the Petitioner.
Mr.Karl Tamboly a/w. Ms.Bindi Dave, Mr.Raghav Gupta, Mr. Kashish Mainkar i/b.
Wadia Ghandy and Company for Respondent No. 1.
CORAM : S.J. KATHAWALLA, J.
DATED : 15TH MAY,2019
(IN CHAMBERS)
JUDGMENT :
1. By the above Arbitration Petitions filed under Section 34 of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 ('the Act'), the Petitioner herein has impugned four separate Awards all dated 25th February, 2019, passed in four separate arbitration proceedings by the Sole Arbitrator - Advocate Shri P.C. Phalgunan.
2. The above Arbitration Petitions were called out for admission on 2nd May, 2019 at 03.00 p.m., when none appeared for Tata Capital Financial Services Limited ('the Respondent Company'). In view thereof, an Order was passed directing the Respondent Company to appear before this Court at 05.00 p.m.
3. At 05.00 p.m. Mr. Harangad Singh Bhogal, Legal Manager of the Respondent Company appeared in person. Since the Arbitrator appointed by the Respondent Company was the same in all the four arbitration proceedings and this Court being aware of the fact that most of the companies, who are in the business of lending finance, are, whilst appointing Arbitrators not following the provisions of the ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 5 / 19 ARBP-560-2019-Final.doc Act, but without disclosing this fact in the disclosure mandatorily required to be made under the Act, are appointing the same Arbitrator in hundreds of matters; sometimes in more than 1000 (one thousand) matters, enquired from Mr. Bhogal the number of arbitration proceedings in which the said Advocate Shri P.C. Phalgunan is appointed as an Arbitrator by the Respondent Company. Again since in the Minutes prepared by the Arbitrator, nothing was mentioned about the fees payable to the Arbitrator by the parties, this Court also enquired from Mr. Bhogal whether the Arbitrator had fixed any fees payable to him by the parties prior to the commencement of the arbitration proceedings. Mr. Bhogal informed the Court that he has joined the Respondent Company only three months back and therefore he is unable to answer these queries raised by the Court. He therefore informed the Court that he will call his Advocate, who will be able to do so.
4. After some time Advocate Nikhil Mehta appeared before the Court. He too had no answers to the queries raised by the Court. This Court therefore enquired from him as to why the Advocates i.e. India Law, who had appeared before the Arbitrator are not appearing before this Court in the above Petitions. Advocate Nikhil Mehta again had no answer to the same. In view thereof, this Court adjourned the matter to 3rd May, 2019 and also directed Advocate Nikhil Mehta to keep the Legal Head of the Respondent Company present in Court.
5. During the subsequent hearings, pursuant to the directions of this Court, the Learned Arbitrator - Advocate Shri P.C. Phalgunan, the Advocates from India ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 6 / 19 ARBP-560-2019-Final.doc Law, Mr. Nitin Sonawane - Regional Legal Head of the Respondent Company, Ms. Sarita Kamath, Head-Legal and Compliance of the Respondent Company, the Managing Director, as well as the Director of the Respondent Company were present along with their Counsel Mr. Karl Tamboly instructed by M/s. Wadia Ghandhy and Company.
6. During the subsequent hearings, the following facts emerged :
6.1 That the Arbitrator - Advocate Shri P.C. Phalgunan is appointed as Arbitrator by the Advocates - India Law in 252 matters of the Respondent Company. 6.2. That the Arbitrator - Advocate Shri P.C. Phalgunan in his Disclosure filed under Section 12(1) of the Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015, has not only incorrectly disclosed that the ongoing arbitration proceedings before him are '8' but he has also suppressed the fact that he has been appointed by the Respondent Company through their Advocates - India Law to act as an Arbitrator in 252 matters, where the Respondent Company is the Claimant.
6.3. That the Arbitrator - Advocate Shri P.C. Phalgunan after incorrectly disclosing that he has only 8 ongoing arbitration proceedings and not 252 arbitration proceedings, wherein he has been appointed as an Arbitrator by the Respondent Company, proceeded to further incorrectly declare that, ' there is no such circumstances / situations / events which is likely to give rise to justifiable doubts regarding my independence or impartiality while acting as an Arbitrator' and further ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 7 / 19 ARBP-560-2019-Final.doc that 'I can devote sufficient time to the Arbitration proceedings, and have the ability to accomplish the Arbitration proceedings within the stipulated time period. Till date, I have finished all the Arbitration proceedings within the time schedule. Hence, there is no circumstances which are likely to affect my ability to devote sufficient time to the Arbitration proceedings'.
6.4. That the Respondent Company through their Advocates - India Law is paying a fixed fee of Rs.1000/- to the Arbitrator - Advocate Shri P.C. Phalgunan for each arbitration i.e. right from the first hearing until passing of an Award. Out of the said sum of Rs.1000/-, Rs.500/- is paid by the Respondent Company at the time of commencement of the arbitration proceedings and the balance Rs.500/- is paid after passing of the Award.
6.5. That the Arbitrator - Advocate Shri P.C. Phalgunan has nowhere recorded in the disclosure filed by him, the fees agreed to be paid to him and the manner in which it is paid by the Respondent Company through their Advocate - India Law, and has also nowhere in the Minutes recorded the fees payable to him by the parties. 6.6. That the Arbitrator - Advocate Shri P.C. Phalgunan without disclosing that he has an understanding with the Respondent Company through their Advocates -
India Law to charge a fixed fee of Rs.1000/- per arbitration to the Respondent Company, has in his Award called upon the Respondent Company to pay his fees quantified at Rs.5000/-.
6.7. The Respondent Company has handed over in Court, a List setting out the ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 8 / 19 ARBP-560-2019-Final.doc names of their Advocates, the names of the Arbitrators appointed by their Advocates and the number of arbitration proceedings in which the same Advocate is appointed as an Arbitrator. From the said List, it has become clear that though the Respondent Company has from time to time appointed several Advocates to attend to their matters and though the said Advocates have appointed several Arbitrators on behalf of the Respondent Company, they have appointed many Advocates as Arbitrators only in one, two or three matters, but have in certain matters appointed the same Arbitrator in more than 100 matters. For example : Advocate Vikas Sood has on behalf of the Respondent Company has appointed Advocate P.S.Dhanoa as an Arbitrator in 184 matters ; Advocate Ashish Aggarwal on behalf of the Respondent Company has appointed Advocate Jyoty Mestry as an Arbitrator in 302 matters ; Advocate Chetan Agarwal on behalf of the Respondent Company has appointed Advocate Sunil Dighe as an Arbitrator in 598 matters ; Advocate OM Gujar Law Chamber on behalf of the Respondent Company has appointed Advocate P.V.Bavkar as an Arbitrator in 1000 matters and Advocate Tayde Legal Associates, have on behalf of the Respondent Company appointed the same Advocate P.B.Bavkar as an Arbitrator in 1278 matters. Therefore, Advocate B.V.Bavkar is appointed as an Arbitrator on behalf of the Respondent Company in 2278 matters.
6.8. That none of the Arbitrators have in their respective Disclosures set out the exact figure of arbitration proceedings in which they are acting as Arbitrator for the Respondent Company.
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7. Section 12 of the Act mandates a proposed Arbitrator to disclose in writing in the form specified in the Sixth Schedule, any circumstance which is likely to give rise to justifiable doubts as to the independence or impartiality of an arbitrator and which are likely to affect his ability to devote sufficient time to the arbitration and in particular his ability to complete the entire arbitration within a period of twelve months. It is also specified / explained in the said Section that the grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist, which give rise to justifiable doubts as to the independence or impartiality of an Arbitrator. One of the grounds set out in the Fifth Schedule, which would give rise to justifiable doubts as to the independence or impartiality of the arbitrator is Ground No. 22 and the same is reproduced hereunder :
"The Arbitrator has within the past three years been appointed as Arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties."
It is therefore clear beyond any doubt, that if an arbitrator has been appointed within the past three years as arbitrator on two or more occasions by one of the parties or an affiliate of one of the parties, he is bound to disclose this fact in his Disclosure, because the same constitutes a ground giving rise to justifiable doubts as to the independence or impartially of the Arbitrator.
8. The Sixth Schedule of the Act sets out the form in which the arbitrator is required to submit his Disclosure to the parties under six heads / items and the same ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 10 / 19 ARBP-560-2019-Final.doc is reproduced hereunder :
"THE SIXTH SCHEDULE [ See Section 12(1)(b) ] Name :
Contact Details : Prior Experience (including Experience with arbitrations) : Number of on-going arbitrations :
Circumstances disclosing any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to your independence or impartiality (list out) :
Circumstances which are likely to affect your ability to devote sufficient time to the arbitration and in particular your ability to finish the entire arbitration within twelve months (list out). :"
9. The Disclosure given in all the above four Petitions by the Arbitrator - Advocate Shri P.C. Phalgunan is identical and one such Disclosure is reproduced hereunder :
"P.C. PHALGUNAN Advocate 1/3, Ground Floor, Chandrodaya, CHS, C.S.T. Road, Opp. Swastik Chambers, Off, Sion Trombay Road, Chambur, Mumbai - 400 071 DISCLOSURE UNDER SECTION 12 (1) OF THE ARBITRATION AND CONCILIATION ACT, 1996 AS AMENDED BY THE ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2015 ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 11 / 19 ARBP-560-2019-Final.doc Name P.C.PHALGUNAN, Advocate Contact Details : 1/3, Ground Floor, Chandrodaya, CHS, C.S.T. Road, Opp. Swastik Chambers, Off, Sion Trombay Road, Chambur, Mumbai - 400 071 Prior Experience (including Experience with More than 20 years of the experience as an Arbitrations) : Advocate and is dealing with Arbitration proceedings for the last 5 years.
During the last five years, I acted as an Arbitrator in many Arbitration proceedings referred by Banks and Financial Institutions.
The matters primarily involve adjudication of disputes relating to money claims of retail accounts. Due to the nature of the claims / disputes and most of the matters are conducted ex-parte due to absence of Respondent/s. Therefore, it is the common practice amongst the banks and financial institutions to draw arbitrators from a specialized pool.
Number of on-going Arbitrations : 8 proceedings approximately. Circumstances Disclosing any past or present I declare that, there is no such relationship with or interest in any of the parties or circumstances/situations/events which is likely to in relation to the subject matter in dispute, whether give rise to justifiable doubts regarding may financial, business, professional or other kind, independence or impartiality while acting as an which is likely to give rise to justifiable doubts as to Arbitrator. your independence or impartiality (list out) :
Circumstances which are likely to affect your That, I have vast experience as an Arbitrator, and ability to devote sufficient time to the Arbitration being an Advocate, I can devote sufficient time to and in particular your ability to finish the entire the Arbitration proceedings, and have the ability to Arbitration within Twenty-Four months and accomplish the Arbitration proceedings within the render an award within three months (list out) : stipulated time period. Till date I have finished all the Arbitration proceedings within the time schedule. Hence, there is no circumstances which are likely to affect my ability to devote sufficient time to the Arbitration Proceedings.
I hereby declare and disclose that, I do not have any relationship in any manner, with either of the parties in any manner, which is likely to give rise to any doubts with respect to my independence or impartiality.
Sd/-
Date : 14-May-18 Yours Truly, Place : Mumbai ( P.C.PHALGUNAN )".
10. In the instant case, the Arbitrator - Advocate Shri P.C. Phalgunan has been admittedly appointed as an Arbitrator by the Respondent Company through their ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 12 / 19 ARBP-560-2019-Final.doc Advocates - India Law in 252 arbitration proceedings, where the Respondent Company is the Claimant. In view of Item 22 of the Fifth Schedule, the same constitutes a ground giving rise to justifiable doubts as to the independence or impartiality of the Arbitrator - Advocate Shri P.C. Phalgunan. Though the Arbitrator -
Advocate Shri P.C. Phalgunan, as well as India Law - Advocates on Record for the Respondent Company and Mr. Nitin Sonawane, Regional Legal Head of the Respondent Company were aware of this fact, as can be seen from the above Disclosure, it is not disclosed therein that within the past three years the Arbitrator - Advocate Shri P.C. Phalgunan has been appointed as an Arbitrator by the Respondent Company on as many as 251 occasions, and in Item 5 of his Disclosure, the Arbitrator, Advocate Shri P.C. Phalgunan did not list out the said fact, but instead stated that no such circumstances existed. Again in Item 4 of his Disclosure, the Arbitrator has made a misrepresentation by stating that the number of ongoing arbitrations before him are "8 proceedings approximately".
11. The Arbitrator - Advocate Shri P.C. Phalgunan as well as the Advocates on Record - India Law, and Mr. Nitin Sonawane, Legal Head of the Respondent Company submitted before the Court that due to inadvertence, in the Disclosure of the Arbitrator - Shri P.C.Phalgunan, only 8 arbitration proceedings are shown as the number of ongoing arbitrations and the fact that Advocate Shri P.C. Phalgunan has been appointed as an Arbitrator in 252 matters by the Respondent Company through their Advocates - India Law, is missed out. The said explanation cannot be accepted, ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 13 / 19 ARBP-560-2019-Final.doc since the Arbitrator - Advocate Shri P.C. Phalgunan is bound to set out the exact number of ongoing arbitrations before him. Instead in the instant case, the Arbitrator - Advocate Shri P.C. Phalgunan, who is well aware of the fact that he has 252 ongoing arbitrations has very cleverly made a misrepresentation by stating "8 proceedings approximately".
12. Under Explanation 3 to the Fifth Schedule, maritime or commodities arbitration may draw arbitrators from a small, specialized pool, in which case it is the custom and practice for parties to appoint the same Arbitrator in different cases. The Arbitrator - Advocate Shri P.C. Phalgunan as well as the Advocates for India Law and Mr. Nitin Sonawane, Legal Head of the Respondent Company are well aware that the said explanation will not assist them in any manner, since the arbitration proceedings in the instant case are not such matters which necessitates drawing Arbitrators from a small / specialized pool. These are simple matters where the Defendants have defaulted in making payments as agreed under the loan / guarantee agreements / documents and there is no shortage of Arbitrators to arbitrate qua such disputes. There is also no custom or practice prevalent to appoint the same Arbitrator in such routine matters, as is evident from the List provided by the Respondent Company referred to hereinabove, which clearly shows that several Advocates are appointed by the Respondent Company to attend to their matters, which are identical in nature to the present case and who in turn have appointed different arbitrators to arbitrate the disputes. In fact, the Advocates - India Law itself have appointed several arbitrators on ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 14 / 19 ARBP-560-2019-Final.doc behalf of the Respondent Company in a maximum of 05 matters, but have only in the case of Advocate Shri P.C.Phalgunan, appointed him as an Arbitrator in about 252 matters.
13. The Arbitrator - Advocate Shri P.C. Phalgunan despite being aware of the above position in law, has not only made an incorrect representation in Item 4 of his Disclosure that the number of ongoing proceedings are "8 proceedings approximately", but has instead chosen to play with words in Item 3 of his Disclosure as follows :
"Prior Experience (including More than 20 years of the experience as an Experience with Arbitrations) : Advocate and is dealing with Arbitration proceedings for the last 5 years.
During the last five years, I acted as an Arbitrator in many Arbitration proceedings referred by Banks and Financial Institutions.
The matters primarily involve adjudication of disputes relating to money claims of retail accounts. Due to the nature of the claims / disputes and most of the matters are conducted ex-parte due to absence of Respondent/s. Therefore, it is the common practice amongst the banks and financial institutions to draw arbitrators from a specialized pool."
14. I am therefore convinced beyond any doubt that the Learned Arbitrator has intentionally provided the Disclosure to the Petitioner in the above matters without disclosing that he is appointed as an Arbitrator in 251 matters by Advocates - India Law on behalf of the Respondent Company and has mislead the Petitioner by stating that the ongoing proceedings before him are "8 proceedings approximately". India Law ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 15 / 19 ARBP-560-2019-Final.doc
- Advocates for the Respondent Company and Mr. Nitin Sonawane, Legal Head of the Respondent Company, being aware of the correct facts in the matter ought to have prevailed upon the Arbitrator - Advocate Shri P.C. Phalgunan to disclose the correct facts in his Disclosure.
15. Again in none of the Minutes, the Arbitrator - Advocate Shri P.C. Phalgunan has set out the fees payable by the parties in all the four arbitration proceedings. The Arbitrator - Advocate Shri P.C. Phalgunan has admittedly charged a fixed fee of Rs.1000/- per arbitration to the Respondent Company but has in the Award called upon the Petitioner to pay fees of Rs.5000/- per matter, which clearly amounts to misconduct on the part of the Arbitrator - Advocate Shri P.C. Phalgunan.
16. I therefore hold that :
(i) An Arbitrator in Item 3 of his Disclosure in the form set out in the Sixth Schedule, is bound to specify the exact number of the ongoing arbitrations before him and not an 'approximate number'.
(ii) An Arbitrator is bound to make the necessary disclosure in the event of him having been appointed as an Arbitrator on two or more occasions by one of the parties, or an affiliate of one of parties, within the past three years, against Item 4 of his Disclosure in the form set out in the Sixth Schedule namely, "circumstances disclosing any past or present relationship with or interest in any of the parties or in relation to the subject-matter in dispute, whether financial, business, professional or other kind, which is likely to give rise to justifiable doubts as to your independence or ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 16 / 19 ARBP-560-2019-Final.doc impartiality".
(iii) For reasons set out in paragraph 12 above, Explanation 3 of the Fifth Schedule will not apply to arbitrations pertaining to disputes arising out of default in making payments by the borrowers / guarantors to the companies / financial institutions, which have lent and advanced loans / funds to the borrowers / guarantors.
17. In the instant case, I am not taking / recommending any action against the guilty, only since the Respondent Company has agreed that the impugned Award passed by the Arbitrator - Advocate Shri P.C. Phalgunan be set aside, and Ms. Sarita Kamath, Legal and Compliance Head of Tata Capital Limited, which is the Parent Company of the Respondent Company - Tata Capital Financial Service Limited, has filed her Affidavit dated 14th May, 2019, inter alia assuring the Court as follows :
"3. Respondent No. 1 shall forthwith adopt the following corrective measures to ensure that such errors are not repeated in the future :
a. For selection and appointment of arbitrator :
(i) Respondent No. 1 will set out criteria for appointment of arbitrators in consultation with its lawyers ;
(ii) Respondent No. 1 henceforth will only appoint persons meeting the said criteria as arbitrators.
b. For conducting the arbitration proceedings :
(i) To ensure that appropriate disclosures are made by the Arbitrators in compliance with the Act, Respondent No. 1 has rolled out a revised disclosure format which will clearly ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 17 / 19 ARBP-560-2019-Final.doc indicate the number of pending arbitration proceedings in which the arbitrator has been appointed by Respondent No. 1 and its affiliates. A draft of the same is annexed herewith.
(ii) In all cases where the arbitrator has been appointed in more than 2 arbitrations by the Respondent No.1, it will cause issuance by the concerned arbitrators of disclosures in the revised by the concerned arbitrations of disclosures in the revised format in all on going and new arbitrations.
(iii) Once received from the arbitrator, such disclosures shall be verified by the concerned legal team member attending to the matter. The legal manager of Respondent No. 1 handling the matter will be responsible to ascertain the total number of matters in which the arbitrator has been appointed by Respondent No.1 at the relevant time from the litigation management tool deployed by Respondent No.1
(iv) The legal Manager shall verify the same with the disclosure received from the arbitrator.
(v) If Respondent No. 1's legal team notices any discrepancy or inaccuracy in the disclosure he/shall shall bring the same to the notice of the arbitrator so that the same can be rectified and a correct disclosure can be made by the arbitrator to the parties. In any event, Respondent No. 1 shall of its own make a correct disclosure to the concerned other side/respondent in such arbitration.
(vi) The legal manager attending to the particular matter (s) shall be held accountable for any lapse on this account and such strict action shall be taken against the concerned person as deemed appropriate by the management of Respondent No. ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 ::: Nitin 18 / 19 ARBP-560-2019-Final.doc
1."
18. In the circumstances, I pass the following Order :
i. All the four impugned Awards, dated 25th February, 2019 passed by the Arbitrator - Advocate Shri P.C. Phalgunan in the above four Petitions, are set aside without going into the merits of the matters and by consent of the parties, the disputes which forms the subject matter of four Awards, which are set aside, are referred to the sole arbitration of Mr.Rohan Kelkar, Advocate ; Advocate Kelkar shall file his disclosure with the Prothonotary and Senior Master on or before 7th June, 2019 ; Advocate Kelkar shall decide the said disputes independently of each other, as four separate references ; the venue of arbitration shall be at Mumbai ; the costs of arbitration shall initially be borne by the parties equally ; and all contentions of the parties are kept open.
ii. The undertaking given by the Respondent Company, set out in paragraph 17 above, to take corrective steps and ensure compliance of the procedure set out under Arbitration and Conciliation Act, 1996, as amended by the Arbitration and Conciliation (Amendment) Act, 2015 , is accepted. iii. The Respondent Company and its affiliates shall henceforth ensure that the arbitrators appointed by them shall disclose to the other party the exact number of pending arbitrations with the concerned arbitrator, and the number of matters in which he / she is appointed as an arbitrator in the last three years by Tata Capital Financial Services Limited and / or its affiliates. ::: Uploaded on - 28/05/2019 ::: Downloaded on - 09/04/2020 18:54:17 :::
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iv. The above Arbitration Petitions are accordingly disposed off.
( S.J.KATHAWALLA, J. )
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