Delhi District Court
Dr. Anshuman Roy vs The Leprosy Mission Trust India on 24 December, 2021
IN THE COURT OF SH GURVINDER PAL SINGH,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
PATIALA HOUSE COURT, NEW DELHI
OMP (Comm.) No. 53/2020
Dr. Anshuman Roy
S/o Late Sh. Pramod K. Roy,
R/o 6/320, Kalawati Pant Colony,
Nawabi Road, opposite Gandhi Ashram,
Haldwani, District Nainital,
Uttrakhand-263139 ...Petitioner
versus
1. The Leprosy Mission Trust India
Through its Trustees
AT: 05, Amrita Sher Gill Marg,
New Delhi-110003
2. Mrs Karuna Roy
W/o Late Sh. Pramod K. Roy
3. Mr. Ajai Udai Roy
S/o Late Sh. Pramod K. Roy
Both R/o A4-504, Elita Promenade,
J P Nagar, 7th Phase,
Bengaluru-560078
4. Mrs Namrata Lall
W/o Sh. Sunjeet Lall
R/o 535, Mutthiaganj,
Allahabad ...Respondents
Date of Institution : 29/07/2020
Arguments concluded on : 03/12/2021
Decided on : 24/12/2021
Appearances : Sh. Gurvinder Singh, Ld. Counsel for petitioner.
Sh. Siddharth Dias, Ld. Counsel for respondent no. 1.
AND
OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and
OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 1 of 31
OMP (Comm.) No. 61/2020
1. Mrs Karuna Roy
W/o Late Sh. Pramod K. Roy
2. Mr. Ajai Udai Roy
S/o Late Sh. Pramod K. Roy
Both R/o A4-504, Elita Promenade,
J P Nagar, 7th Phase,
Bengaluru-560078
3. Mrs Namrata Lall
W/o Sh. Sunjeet Lall
R/o 535, Mutthiaganj,
Allahabad ...Petitioners
versus
1. The Leprosy Mission Trust India
Through its Trustees
AT: 05, Amrita Sher Gill Marg,
New Delhi-110003
2. Dr. Anshuman Roy
S/o Late Sh. Pramod K. Roy,
R/o 6/320, Kalawati Pant Colony,
Nawabi Road, opposite Gandhi Ashram,
Haldwani, District Nainital,
Uttrakhand-263139 ...Respondents
Date of Institution : 04/08/2020
Arguments concluded on : 03/12/2021
Decided on : 24/12/2021
Appearances : Sh. Gurvinder Singh, Ld. Counsel for petitioners.
Sh. Siddharth Dias, Ld. Counsel for respondent no. 1.
JUDGMENT
1. Finding it expedient in the interest of justice, I shall decide by this common judgment the following two petitions under Section 34 of The Arbitration and Conciliation Act, 1996 (herein after referred as The Act) filed by the parties to the arbitration as OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 2 of 31 these arise out of the impugned common award dated 25/03/2019 passed by Ld. Sole Arbitrator Dr. Vijaykumar Aruldas. First petition is OMP (Comm.) No. 53/2020 titled Dr. Anshuman Roy (herein after referred as petitioner A) vs The Leprosy Mission Trust India (herein after referred as claimant/respondent/trust) and others. Second petition is OMP (Comm.) No. 61/2020 titled Karuna Roy, Ajai Udai Roy, Namrata Lall (herein after referred as petitioners B1, B2, B3 respectively) vs The Leprosy Mission Trust India & Another. Ld. Sole Arbitrator in operative portion of the award dated 25/03/2019 in arbitration case titled The Leprosy Mission Trust India (claimant) vs (i) Dr. Anshuman Roy, (ii) Mrs Karuna Roy, (iii) Mr. Ajai Uday Roy, (iv) Ms. Namrata has awarded as follows:-
"AWARD The Respondent shall pay the claimant the sum of Rs.5,00,000/- along with interest @ 12% till the date of Award (i.e., pre reference period and pendent-lite), respondent is also liable to pay the interest @ 18% from the date of award till the date of payment. In addition, the Claimant is also entitled to the costs as mentioned above."
2. I have heard Sh. Gurvinder Singh, Ld. Counsel for petitioners (A, B1, B2, B3); Sh. Siddharth Dias, Ld. Counsel for The Leprosy Mission Trust India (claimant/respondent/trust) and perused the record of the case, the arbitral proceedings record, relied upon precedents, filed brief written arguments of parties and given my thoughtful consideration to the rival contentions put forth.
3. Adumbrated in brief the facts of the case of the parties are as follows:-
Petitioner A was sponsored for his MBBS and MS studies at OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 3 of 31 CMC Ludhiana by respondent/claimant/trust. In lieu of sponsorship for MBBS and MS studies, Service Agreements were signed by and between petitioner A with father Sh. P.K Roy as surety and respondent/claimant/trust. In terms of Clause 10 of Service Agreement dated 30/04/2002 disputes or claims arising out of the agreement were to be referred for arbitration by a Ld. Sole Arbitrator. In the aforesaid agreement it was agreed by and between the parties that petitioner A shall serve respondent/ claimant/trust run hospital for minimum period of five years after completion of his MS course, failing which petitioner A shall pay to respondent/claimant/trust by way of liquidated damages not exceeding Rs. 5,00,000/-. Allegedly, petitioner A failed to serve respondent/claimant/trust to run hospital as promised. Disputes arose between the parties under the said agreement. Respondent/ claimant/trust appointed Ld. Sole Arbitrator. Arbitral proceedings culminated into the impugned arbitral award. Arbitral proceedings record also find mentions that claimant/respondent/ trust had filed an application to implead legal heirs of deceased surety of petitioner A namely petitioner B1 Mrs. Karuna Roy (wife of deceased surety Sh. Pramod K. Roy); petitioner B2 Mr. Ajai Udai Roy (other son of deceased surety Sh. Pramod K. Roy) and petitioner B3 Mrs Namrata Lall (daughter of deceased surety Sh. Pramod K. Roy) and they were impleaded as LRs of deceased surety Sh. Pramod K. Roy. Arbitral proceedings culminated in the impugned ex-parte arbitral award.
4. Petitioner A has impugned the arbitral award mainly on the following grounds. Impugned award is bad in facts and law. Impugned award is vitiated by patent illegality appearing on the OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 4 of 31 face of award. The claim of respondent/claimant/trust was hopelessly barred by law of limitation. The cause of action, if any, had accrued in favour of respondent/claimant/trust in June, 2006 when petitioner A completed his MS studies and on the basis of it petitioner A was required to serve the hospital run by respondent immediately and in case of such breach, lump sum compensation was required to be paid to respondent/claimant/ trust. As per Article 27 of the Schedule of The Limitation Act, 1963, the time from which period of limitation begins to run, in case of suits/actions for compensation for breach of a promise to do anything at a specified time or upon the happening of a specified contingency, is three years from the arrival of time specified or the happening of such contingency. Limitation period for compensation of such breach of a promise by act of petitioner A got expired way back in year 2009 and there was no such extension of limitation in the present case. Ld. Sole Arbitrator was unilaterally appointed in April, 2016 i.e., after a period of almost ten years, so the claim was liable to be rejected at threshold. Even Ld. Sole Arbitrator in impugned award had held that cause of action arise in January, 2007 when petitioner A chose to join the Christian Hospital, Herbetpur rather than joining organization of respondent no. 1/claimant/trust and even on said assumption, the claim was time barred. Petitioner A was not served and was not given proper notice of the appointment of Ld. Sole Arbitrator and any other further notice/summons and was therefore unable to present his case. Complete/full name of colony of petitioner A was 'Kalawati Pant Colony', whereas the final award find mentions the name as 'Kalawati Colony'. Arbitration agreement is not valid under law and in arbitration OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 5 of 31 agreement the identity of Arbitrator cannot be judged from the blanks left and particulars being not complete. Petitioner A was not provided with the copies of Service Agreements and fraud was played upon petitioner A by respondent/claimant/trust. Petitioner A was not bound by any such Service Agreement dated 30/04/2002 as falsely alleged by respondent no.1. Ld. Sole Arbitrator had adopted the pedantic and mechanical approach and wrongly and in arbitrary manner passed the impugned award. With the petition, petitioner A also filed an application for condonation of delay. It was argued that copy of arbitral award was served on 05/12/2019 when petitioner A got a notice from Executing Court, Dehradun and till date petitioner did not get any signed copy of impugned arbitral award. Petitioner A is a medical officer and has been involved in rendering medical services at Krishna and Research Centre, Haldwani as Orthopaedic Consultant, therefore, after receiving the copy of the award in the first week of December, 2019 could only contact his lawyer in the month of March, 2020 to prepare the present petition but national lock down followed due to Covid-19 Pandemic situation and petition was thereafter filed on 29/07/2020 at earliest. It was prayed for condonation of 29 days delay.
5. Petitioners B1, B2 and B3 have impugned the arbitral award mainly on the following grounds. Impugned award is bad in facts and law. Impugned award is vitiated by patent illegality appearing on the face of award. The claim of respondent/ claimant/trust was hopelessly barred by law of limitation. The cause of action, if any, had accrued in favour of respondent/ claimant/trust in June, 2006 when petitioner A completed his MS OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 6 of 31 studies and on the basis of which petitioner A was purportedly required to serve the hospital run by respondent no. 1 immediately and in case of such breach, lump sum compensation was required to be paid to respondent/claimant/trust. None of the petitioners B1, B2, B3 ever stood any surety for petitioner A as falsely alleged by respondent/claimant/trust. Petitioners B1, B2, B3 were neither signatories to any Service Agreements nor were ever provided with the copies of Service Agreements and petitioners B1, B2, B3 were not bound by any such Service Agreements as falsely alleged by respondent/claimant/trust. Petitioners B1, B2, B3 were not served and were not given proper notice of appointment of Ld. Sole Arbitrator and any other further notice/summons of any application and therefore were unable to present their case before Ld. Sole Arbitrator. None of the petitioners B1, B2, B3 resided at the addresses given in the impugned award at the time of pendency of arbitral proceedings or passing of the award thereof, whereas the correct addresses of petitioners B1, B2, B3 are given in the Memo of Parties in the present case. Arbitration agreement is not valid under the law and in arbitration agreement the particulars of Ld. Sole Arbitrator are not mentioned and have been left blank and identity of the arbitrator cannot be judged from bare perusal of arbitration agreement. Ld. Sole Arbitrator had adopted the pedantic and mechanical approach and wrongly and in arbitrary manner passed the impugned award. Petitioners B1, B2 and B3 had also filed application for condonation of delay in filing the petition. It was argued that petitioners B1, B2 and B3 gained the knowledge of the impugned award on 30/01/2020 when petitioner A informed them about it but due to national lock down enforced OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 7 of 31 due to Covid-19 pandemic situation and closure of Courts, petitioners B1, B2, B3 could not file the petition within the statutory period of three months. It was also argued that petitioners B1, B2, B3 were never served with signed copy of impugned arbitral award by Ld. Sole Arbitrator or even by respondent/claimant/trust. It was prayed that delay, if any, in filing the petition be condoned.
6. It is the averment of respondent/claimant/trust through Counsel in filed replies as well as the arguments of Ld. Counsel that despite ample opportunities, petitioners failed to appear and defend before Ld. Sole Arbitrator. It was argued that petitioner A was served notices multiple times at his residential as well as work place address through all possible means including speed post, registered AD, courier and email but he failed to attend the arbitral proceedings. Also was argued that petitioners B1 to B3 were also served multiple times through speed post, registered AD at the address of Haldwani as petitioner B1 was mother of petitioner A, petitioner B2 was brother of petitioner A and petitioner B3 was sister of petitioner A. Petitioners have approached this Court with unclean hands and had chosen not to participate in the arbitration proceedings. Even as per the website of Medical Council of India, the permanent address of petitioner A is 6/320, Kalawati Colony, Haldwani, Nainital and on said address petitioner A was duly served with the notices/ summons/award. It has been argued that petitions have been filed beyond the period of limitation of three months and also subsequent 30 days for which even they do not have any sufficient cause for getting the delay condoned. Ld. Counsel for OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 8 of 31 respondent relied upon the following precedents:-
1. Assam Urban Water Supply and Sew. Board vs Subash Projects and Marketing Ltd., MANU/SC/0054/2012;
2. Sagufa Ahmed & Ors. vs Upper Assam Polywood Products Pvt. Ltd. & Ors., MANU/SC/0697/2020 and
3. New India Assurance Co. Ltd. vs Rudraksh Laminates Private Limited, MANU/DE/0264/2021.
It was argued that petitioner A was served with the notice in the execution proceedings sent by Executing Court at Dehradun on 15/11/2019, as per certified copy of service of such notice filed on record but petitioner A claimed of having received the copy of impugned arbitral award with notice of execution petition only on 05/12/2019 and thus petitioner A is misleading this Court. Petitions are hopelessly barred by limitation and deserve dismissal. It was argued that in terms of law laid by Supreme Court in the case Sagufa Ahmed & Ors. vs Upper Assam Polywood Products Pvt. Ltd. & Ors., Civil Appeal No. 3007-3008 of 2020 what was extended by Supreme Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. It was also argued that petitioner B1 was also residing at Dehradun which was apparent from the profile created by petitioner B1 on the website of www.facebook.co.in depicting she is resident of Haldwani, Uttrakhand. It was argued that petitioner B1 was actively associated with an NGO in Haldwani. It was also argued that even the Statement of Truth got filed by petitioner B1 was attested in Haldwani. It was argued that the petitions are merit less, devoid of any ground under Section 34 of the Act for setting aside of the impugned arbitral award. It was prayed to dismiss the petitions.
OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 9 of 31
7. In both the petitions under adjudication none of the parties to the lis have placed on record the originals or copies of Service Agreements in question between petitioner A on one part and respondent/claimant/trust on the other part wherein Sh. Pramod K. Roy, father of petitioner A stood surety for petitioner A. I advert to arbitral proceedings record. In terms of Index II of arbitral proceedings record, with the Statement of Claim of respondent/claimant/trust there are copies of the following service agreements i.e., (1) Service Agreement Annexure P-1, undated, entered for sponsorship of petitioner A by respondent/ claimant/trust for undergoing MBBS course having no arbitration clause but clause 7 therein embodies that all suits in respect of any disputes arising out of agreement shall be instituted in the courts in the Union Territory of Delhi alone; (2) Service Agreement with surety dated 30/04/2002 between respondent/ claimant/trust and petitioner A whereby Sh. Pramod K. Roy, father of petitioner A, stood surety for petitioner A. Perusal of the filed copy of Service Agreement with surety dated 30/04/2002, Annexure P-9 of Claim Petition before Ld. Sole Arbitrator reveals the text of Clause 10, which is as follows:-
"10. That in the event of any dispute or claim arising out of this Agreement, the same shall be referred to the arbitration of Shri......................................S/o.............................................. r/o............................................. as sole arbitrator who shall hold all proceedings in the Union Territory of Delhi alone. The provisions of Arbitration and Conciliation Act, 1996 shall apply to such arbitration. The decision of the sole Arbitrator shall be final and binding on all parties."
8. In this fact of the matter, above said copy of Service Agreement with surety dated 30/04/2002, Annexure P-9 of Claim Petition before Ld. Sole Arbitrator was neither having the name nor parentage, nor address of Ld. Sole Arbitrator, as is OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 10 of 31 borne out in para 2.1 of impugned arbitral award. Para 2.1 of the impugned arbitral award reads as under:-
"2.1 The said Service Agreement dated April 30, 2020 contains the Arbitration clause and read as:
"That in the event of any dispute or claim arising out of this Agreement, the same shall be referred to the arbitration of Dr. Vijaykumar Aruldas S/o Mr Devanesan Samuel Aruldas R/o. __________, as sole arbitrator who shall hold all proceedings in the Union Territory of Delhi alone. The provision of Arbitration and Conciliation Act, 1996 shall apply to such arbitration. The decision of the sole Arbitrator shall be final and binding on all the parties."' Accordingly, the above averments in para 2.1 of impugned arbitral award are per contra to the material before Ld. Sole Arbitrator.
9. Copy of letter dated 02/02/2016 of Deputy Director Resource Mobilization of respondent/claimant/trust sent to Ld. Sole Arbitrator filed as document at serial no. 1 as per Index III of arbitral proceedings record reveals the request of respondent/ claimant/trust to Ld. Sole Arbitrator to accord consent for being appointed to adjudicate the dispute between the respondent/ claimant/trust and petitioner A with respect to two claims, one for sponsorship of petitioner A of MBBS course at CMC Vellore and for MS (Orthopaedics) course at CMC Ludhiana and since petitioner A has not served the mission as per these agreements, so surety amount of Rs. 5,47,500/- was due against him towards settlement of his service obligation. There is no material in Court record or on arbitral proceedings record of service of any notice under Section 21 of the Act by respondent/claimant/trust upon any of the petitioners before sending of aforesaid letter dated 02/02/2016.
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10. Section 21 of The Act provides that unless and otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which the request for that dispute to be referred to the arbitration is received by the respondent. Limitation in respect of which a request is made by one party to other party to refer such dispute to the arbitration stops when such notice is received by other party.
11. Section 34 (1) (2), (2A) and (3) of The Arbitration and Conciliation Act, 1996 read as under:-
"34. Application for setting aside arbitral award- (1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub- section (3).
(2) An arbitral award may be set aside by the court only if-
(a) the party making the application furnishes proof that-
(i) a party was under some incapacity, or
(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or
(iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iv) the arbitral award deals 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;
Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 12 of 31 decisions on matters not submitted to arbitration may be set aside; or
(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or
(b) the court finds that-
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or
(ii) the arbitral award is in conflict with the public policy of India.
Explanation 1 - For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of India, only if,-- (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice.
Explanation 2.-- For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute.
(2A) An arbitral award arising out of arbitrations other than international commercial arbitrations, may also be set aside by the Court, if the Court finds that the award is vitiated by patent illegality appearing on the face of the award:
Provided that an award shall not be set aside merely on the ground of an erroneous application of the law or by reappreciation of evidence.
(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 13 of 31 three months it may entertain the application within a further period of thirty days, but not thereafter."
12. With claim petition before Arbitral Tribunal respondent/ claimant/trust inter alia filed Annexure P-46 i.e., copy of legal notice dated 19/07/2014 purportedly sent by respondent/ claimant/trust to petitioner A but neither in arbitral proceedings record nor with replies respondent/claimant/trust has placed on record any proof of service of said legal notice dated 19/07/2014 upon petitioner A. Also bare perusal of aforesaid legal notice dated 19/07/2014 reveals that it incorporates demand of Rs. 5,47,500/- from petitioner A to be paid within 15 days from receipt of legal notice with Rs. 7500/- as charges of legal notice and putting petitioner A to caution that it was in his interest to settle the outstanding payment and the lawyer specific instruction to institute legal proceedings against petitioner A. Said notice did not incorporate any request for dispute to be referred to arbitration. With the aforesaid claim petition before Arbitral Tribunal respondent/claimant/trust also filed copy of intimation letter dated 09/12/2014 addressed to petitioner A for initiation of arbitration proceedings after petitioner A had not replied to aforesaid legal notice dated 19/07/2014. Said letter dated 09/12/2014 find mentions that respondent/claimant/trust was constrained to invoke the arbitration clause as per the service agreement. Also in the arbitral proceedings record and with reply respondent/claimant/trust has placed no material/document for service of (1) aforesaid legal notice dated 19/07/2014 and (2) aforesaid letter/intimation dated 09/12/2014 upon petitioner A for initiation of arbitration proceedings.
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13. Delhi High Court in the case of Alupro Building Systems Pvt Ltd vs Ozone Overseas Pvt Ltd, O.M.P 3/2015 decided on 28/02/2017 inter alia held that where a notice under Section 21 of the Act invoking arbitration clause is not served upon the other party by the party invoking the said clause and the arbitration proceedings are held then in absence of any agreement by the petitioner for waiving of requirement of notice under Section 21 of the Act, the impugned arbitral award would be opposed to the fundamental policy of Indian law since the mandatory requirement of the Act stands not complied and ground under Section 34 (2)(b) (ii) of the Act is attracted and such impugned award could be set aside on this ground.
14. Bombay High Court in the case of Bhanumati J. Bhuta vs Ivory Properties & Hotels Pvt. Ltd., 2020 SCC Online Bombay 157 has held that the arbitral proceedings commence in respect of dispute when notice invoking of arbitration agreement is received by other side and not when such notice is only served upon the Arbitral Tribunal. The onus is on the applicant who had issued such notice to prove the delivery of such notice upon the other side.
15. In the case of International Nut Alliance LLC vs Beena Cashew Company, 2014 SCC Online Mad 425, it was inter alia held that before composition of arbitrators, a notice to the other party is very much essential.
16. It is the fact of the matter that no request/notice of respondent/claimant/trust was served upon any petitioners or Sh.
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17. Under Section 12 of The Act, when a person is approached in connection with his possible appointment as an arbitrator, he is bound to disclose in writing any circumstances, such as the existence either direct or indirect, of 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 his independence or impartiality; 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. Various grounds are set out in the Fifth Schedule as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. The disclosure shall be made by such person in the form specified in the Sixth Schedule. An arbitrator may be challenged by the parties only if any circumstances referred to in Section 12 (3) of The Act subject to Section 13 (4) of The Act exist which provide for an agreement between the parties for such procedure for challenge. If such challenge is unsuccessful, the party may make an application for setting aside an arbitral award in accordance with Section 34 of The Act.
18. Record of this case as well as arbitral proceedings record reveals that Ld. Sole Arbitrator did not serve any disclosure in OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 16 of 31 writing any circumstances, such as the existence either direct or indirect, of 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 his independence or impartiality; 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; in terms of mandate laid under Section 12 of the Act, before or after amendment by Act 3 of 2016. Accordingly, in the prescribed form in the Schedule of the Act, no disclosure was made by Ld. Sole Arbitrator to any of the petitioners after Ld. Sole Arbitrator was approached by respondent/claimant/trust. More so when name, parentage, address or particulars of Ld. Sole Arbitrator do not find mention in the copy of Service Agreement dated 30/04/2002 placed as Annexure P-9 with the Claim Petition of claimant in arbitral proceedings record.
19. Sub-section (1) of Section 29A of The Act provides that the award shall be made within a period of twelve months from the date the arbitral tribunal enters upon the reference. The explanation to the said provision provides that an arbitral tribunal shall be deemed to have entered upon the reference on the date on which the arbitrator or all the arbitrators, as the case may be, have received notice, in writing, of their appointment. Sub- section (2) of Section 29A of The Act provides that if the award is made within a period of six months from the date the arbitral tribunal enters upon the reference, the arbitral tribunal shall be entitled to receive such amount of additional fees as the parties OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 17 of 31 may agree. Sub-section (3) of Section 29A of The Act provides that the parties may, by consent, extend the period specified in subsection (1) for making award for a further period not exceeding six months. Subsection (4) of Section 29A of The Act provides that if the award is not made within the period specified in sub-section (1) or the extended period specified under sub- section (3), the mandate of the arbitrator(s) shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period. If the Court finds that the proceedings have been delayed for the reasons attributable to the arbitral tribunal, then, the Court may pass an order for reduction of fees of arbitrator(s) by not exceeding five per cent for each month of such delay. Sub-section (5) of Section 29A of The Act provides that the extension may be granted only for sufficient cause and on such terms and conditions as may be imposed by the Court.
20. It has been held in preceding paragraphs that no notice under Section 21 of the Act was served by respondent/ claimant/trust upon any of the petitioners containing request for dispute to be referred to arbitration before sending of letter dated 02/02/2016 by respondent/claimant/trust to Ld. Sole Arbitrator with request to consent for arbitration. Section 29A of the Act was inserted by Act 3 of 2016 and is applicable with effect from 23/10/2015. Arbitral proceedings record reflects receipt of letter dated 02/02/2016 of respondent/claimant/trust by Ld. Sole Arbitrator for according consent for appointment of Ld. Arbitrator. Later to that Ld. Sole Arbitrator issued communication dated 04/04/2016 for first sitting of the OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 18 of 31 arbitration scheduled on 18/04/2016. First sitting of the Arbitral Tribunal took place on 18/04/2016, as per arbitral proceedings record. Arbitral proceedings culminated into impugned arbitral award on 25/03/2019 and accordingly the impugned award was made much later to period of twelve months from the date the Arbitral Tribunal entered upon the reference. It is fact of the matter that parties never extended the period by consent for making the award beyond the period of twelve months. It is also the fact of the matter that the period for making award had not been extended by competent court of jurisdiction. In accordance with sub section (4) of Section 29A of the Act, the award having not been made within the specified period in sub Section (1) of Section 29A of the Act, the mandate of Ld. Sole Arbitrator stood terminated after expiry of period of twelve months from the date the Arbitral Tribunal entered upon the reference. It also becomes premise to set aside the impugned arbitral award.
21. Supreme Court in case of TRF Ltd. vs Energo Engg. Projects Ltd., (2017) 8 SCC 377 has held that by virtue of section 12(5) of The Act, if any person, who falls under any of the category specified in the Seventh Schedule shall be ineligible to be appointed as an Arbitrator. It is held that the amended law under Section 11(6-A) of The Act requires the Court to confine examination of the existence of an arbitration agreement notwithstanding the judgment of the Supreme Court or the High Court while considering an application under section 11(6) of The Act. The designated arbitrator whose ineligibility to act as an arbitrator by virtue of amendment to Section 12 of The Act by the Arbitration and Conciliation (Amendment) Act, 2015, does not OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 19 of 31 have power even to nominate any other person as arbitrator. The Supreme Court and High Court in certain circumstances have exercised jurisdiction to nullify the appointments made by the authority in such situation.
22. Supreme Court in case of Bharat Broadband Network Ltd vs United Telecoms Ltd, (2019) 5 SCC 755 after construing Section 12(5) of The Act read with Fifth, Sixth and Seventh Schedule held that the Managing Director of the party, who was a named arbitrator, could not act as arbitrator nor could be allowed to appoint another arbitrator. The disclosure of a prospective arbitrator has to be made in the form specified in the Sixth Schedule and the ground stated in the Fifth Schedule are to serve as a guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator. Any prior agreement to the contrary is wiped out by the non-obstante clause in Section 12(5) of The Act the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. Such ineligibility can be removed by an express agreement in writing. It was held that learned arbitrator had become de jure ineligible to perform his function as an arbitrator.
23. Supreme Court in the case of Perkins Eastman Architects DPC vs HSCC (India) Ltd., 2019 SCC Online SC 1517 has held that in a case where only one party has a right to appoint a sole arbitrator, its choice will always have an element of exclusivity in OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 20 of 31 determining or charting the course for dispute resolution. The person who has an interest in the outcome or decision of the dispute must not have the power to appoint a sole arbitrator. That has to be taken as the essence of the amendments brought in by the Arbitration and Conciliation (Amendment) Act, 2015. Supreme Court has set aside the appointment of an arbitrator appointed by one of the parties having exclusive right to appoint and appointed an independent arbitrator in the application filed under Section 11(6) of The Act.
24. In the case of Proddatur Cable TV Digi Services vs. Siti Cable Network Ltd., 2020 SCC Online Del 350, it was inter alia held by Delhi High Court that following ratio of the judgment in the case of Perkins (supra), it is clear that a unilateral appointment by an authority which is interested in the outcome or decision of the dispute is impermissible in law. When the Arbitration Clause empowers the Company to appoint Sole Arbitrator, it can hardly be disputed that the Company acting through its Board of Directors will have an interest in the outcome of the dispute. The appellant had filed the petition under Section 14 and 15 of The Act seeking declaration that the mandate of the arbitrator appointed by the respondent be terminated and an arbitrator be appointed by High Court in the provisions of The Act. Following ratio of the judgments in Perkins (supra) and Bharat Broadband Network Limited (supra), the mandate of the Arbitrator was found terminated de jure and since the present arbitrator had become unable to perform his functions as an arbitrator, his mandate was terminated and another independent Sole Arbitrator was OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 21 of 31 appointed to substitute the previous arbitrator.
25. In the case of M/s Omcon Infrastructure Pvt. Ltd. Vs India Bulls Investment Advisors Ltd, OMP (T) (Comm.) 35/2020 and IA 6153/2020 decided on 01/09/2020 by Hon'ble Ms. Justice Rekha Palli of Delhi High Court, wherein petition was filed under Section 14 and 15 of The Act, seeking termination of the mandate of Ld. Arbitrator unilaterally appointed by the respondent and also quashing of order passed by Ld. Arbitrator, deciding the application of petitioner under Section 12 of The Act, the ratio of the decision in case of Perkins (supra) was applied and held that once the Managing Director of the respondent Company was ineligible to appoint the arbitrator, the same would also bar the Company itself from unilaterally appointing the sole arbitrator and reference was also made to the decision of Proddatur Cable TV Digi Services (supra). Therein also the mandate of the Ld. Arbitrator was terminated and new independent Sole Arbitrator was appointed.
26. Perusal of the record also reveals that replies filed on behalf of respondent/claimant/trust to the petitions are not accompanied by any list of documents in accordance with Order XI read with Section 141 of The Code of Civil Procedure, 1908 applicable to commercial dispute of a specified value and the requisite information has not been provided whether the documents in the power, possession, control or custody of answering respondent were originals, office copies or photocopies nor set out in brief the details of parties of each document, mode of execution, issuance or receipt and line of custody of each document. As OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 22 of 31 Annexure R-1 (colly) to both petitions the answering respondent/claimant/trust through Counsel has placed on records the photocopies of some speed post receipts of date 27/03/2019 depicting dispatch of speed post article to petitioner A only by respondent/claimant/trust which is followed by some speed post tracking reports without appropriate certificate under Section 65B of The Indian Evidence Act for any electronic record document like tracking reports to be admissible. Originals of these speed post receipts of date 27/03/2019 have not been filed by respondent/claimant/trust nor they are in the arbitral proceedings record. Be that as it may, there is absolutely no material on record for dispatching of even a copy, much less signed copy of impugned arbitral award and its service upon petitioners B1, B2, B3. There is no material on the arbitral proceedings record to infer or prove the service of signed copy of arbitral award by Ld. Sole Arbitrator upon any of the petitioners after publishing of the impugned arbitral award.
27. As per arbitral proceeding record, proceeding sheet dated 25/01/2017 of Ld. Sole Arbitrator reflects direction of notice of application for impleadment of legal heirs of surety to be issued to the legal heirs to the surety of petitioner A. As per arbitral proceedings record, no notice was even dispatched to petitioners B2, B3 of above application for impleadment of legal heirs of surety. Purported notice of above said application for impleadment of legal heirs of surety was dispatched to petitioner B1, mother of petitioner A but not at the address of petitioner B1 given by her in memo of parties of her petition but was sent to the address of petitioner A. Vide order dated 10/03/2017 Ld. OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 23 of 31 Sole Arbitrator had allowed the application of respondent/ claimant/trust for impleadment of legal heirs of surety. Same was without service of any notice whatsoever upon petitioners B2 and B3 and without proper service of notice upon petitioner B1. All the petitioners were proceeded ex parte on 10/03/2017 by Ld. Sole Arbitrator. It is fact of the matter that in the Statement of Truth in the form of affidavit of petitioner B1 she mentioned her address of Bengaluru with the narration that she presently was in Haldwani. Respondent/claimant/trust through Counsel cannot cry hoarse and caste aspersions upon 72 years old petitioner B1 if she happened to be in Haldwani at place of her son petitioner A in Covid-19 pandemic situation in the month of July, 2020 when she claims to be residing in Bangaluru in her Statement of Truth in the form of affidavit but then presently to be at Haldwani. Respondent/claimant/trust perhaps lost sight of the fact of reports of process servers placed by them through Counsel on record with respect to notices sent by Executing Court at Haldwani to petitioners B1, B2 and B3 that said process servers met petitioner A who disclosed that petitioners B1, B2, B3 were not residing at the given address of Haldwani.
28. In the case of Impex Corporation & Others vs Elenjikal Aquamarine Exports, 2007 SCC Online Ker 125, it was inter alia held that where no proper and sufficient notice is given to a party by the arbitrator, there is violation of principle of natural justice and these are also violation of Section 18 and 25 of The Act.
29. Supreme Court in the case of M/s Voestalpine Schienen OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 24 of 31 GMBH Vs. Delhi Metro Rail Corporation Ltd., (2017) 4 SCC 665 has construed Section 12(5) of The Act (as amended) and also the Seventh Schedule to The Act and has held that under Section 12(5) of The Act, notwithstanding any prior agreement to the contrary, any person whose relationship, with the parties or counsel or the subject matter of the dispute, falls under any of the categories specified in the Seventh Schedule shall be ineligible to be appointed as an arbitrator. It is held that in such an eventuality, when the arbitration clause finds foul with the amended provisions i.e. Section 12(5) of The Act, the appointment of an arbitrator would be beyond pale of arbitration agreement, empowering the Court to appoint such arbitrator(s), as may be permissible. Other party cannot insist for appointment of an arbitrator in terms of the arbitration agreement. In such situation, that would be the effect of non-obstante clause contained in Section 12(5) of The Act.
30. Supreme Court in case of HRD Corporation (Marcus Oil and Chemical Division) vs. Gail (India) Limited (Formerly Gas Authority of India Ltd.), 2017 SCC OnLine SC 1024 has held that if the learned arbitrator fails to file disclosure in terms of section 12(1) of The Act read with Fifth Schedule of The Act, the remedy of the party aggrieved in that event would also be to apply under section 14(2) of The Act to the court to decide about the termination of the mandate of the arbitral tribunal on that ground.
31. As aforesaid, there is non compliance of the elicited mandate of Section 12 of The Act by Ld. Sole Arbitrator as he OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 25 of 31 did not send the disclosure in prescribed form specified in the Sixth Schedule of The Act to the present petitioner embodying existence or otherwise of the grounds giving rise to justifiable doubts as to his independence or impartiality of arbitrator including arbitrator's relationship with the claimants/Counsel for claimants.
32. In view of law laid down in the cases of (i) TRF Ltd. (supra); (ii) Bharat Broadband Network Limited (supra); (iii) Perkins Eastman Architects DPC (supra); (iv) HRD Corporation (supra); (v) Proddatur Cable TV Digi Services (supra) and (vi) M/s Omcon Infrastructure Pvt. Ltd. (supra), no arbitrator can be unilaterally appointed by respondent/ claimant/trust and in this case at the outset vide letter dated 02/02/2016 Deputy Director Resource Mobilization of respondent/claimant/trust had unilaterally appointed Ld. Sole Arbitrator without any acceptability of any of the petitioners of such appointment for adjudicating the dispute between the parties to the lis. Petitioners were not given proper notice of the appointment of Ld. Sole Arbitrator. Even the mandatory disclosure in terms of Fifth and Seventh Schedule of The Act in the format of Sixth Schedule of The Act was not conveyed by Ld. Sole Arbitrator to the petitioners. Also the award was not made within period of twelve months from the date the arbitral tribunal entered upon reference.
33. Supreme Court in the case of Assam Urban Water Supply and Sewerage Board Vs. Subash Projects and Marketing Limited, (2012) 2 SCC 624 has held that "prescribed period" of OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 26 of 31 limitation for making an application for setting aside the arbitral award is 3 months and not 3 months and 30 days. The period of 30 days is beyond the period of 3 months. Benefit of Section 4 of the Limitation Act, 1963 will not be available if 30th day expires on a day when the Court is closed. Since the arbitration petition was filed on next working day after expiry of 30 days after 3 months period, the arbitration petition was dismissed as time barred and upheld by Supreme Court.
34. Supreme Court in case of Dakshin Haryana Bijli Vitran Nigam Ltd. vs M/s Navigant Technologies Pvt. Ltd, 2021 SCC OnLine SC 157 has held that the date on which the signed award is provided to the parties is a crucial date in arbitration proceedings under the Act. It is from this date that: "(a) the period of '30 days' commences for filing an application under Section 33 for correction and interpretation of the award, or for additional award; (b) the arbitral proceedings would terminate as provided by Section 32(1) of the Act; (c) the period of limitation for filing objections to the award under Section 34 commences."
35. Supreme Court in case of State of Maharashtra & Ors vs ARK Builders Private Ltd., (2011) 4 SCC 616, has held that the period of limitation prescribed under section 34(3) of The Act would start running only from the date when a signed copy of award is delivered to/received by a party making the application for setting aside the award under section 34(1) of The Act. Reliance was placed on the case of Union of India vs Tecco Trichy Engineers & Contractors, (2005) 4 SCC 239, wherein OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 27 of 31 also was so held by Supreme Court.
36. Supreme Court in case of Benarsi Krishna Committee & Ors. Vs Karmyogi Shelters Pvt. Ltd, (2012) 9 SCC 496 has held that limitation of three months under section 34(3) of The Act is to be reckoned from date on which party itself received signed copy of the award and not its advocate or agent. Bombay High Court in case of E-square Leisure Pvt. Ltd. vs. K.K. Jani Consultants and Engineering Company, (2013) 2 Bom.C.R. 689, has held that the limitation for making an application under section 34(3) of The Act for setting aside an arbitral award would commence only after a signed copy of the award is received by a party from the arbitral tribunal under section 31(5) of The Act.
37. Supreme Court in the Suo Motu Writ Petition (Civil) No. 03/2020 while exercising powers under Article 142 read with Article 141 of The Constitution of India by order dated 23/09/2021 inter alia held that:-
"......................................................................................................... III. The period from 15.03.2020 till 02.10.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. ........................................................................................................."
38. It had been the argument of Ld. Counsel for petitioners that none of the petitioners ever received the signed copy of the impugned arbitral award and even if it is considered that petitioner A received the copy of award from Executing Court OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 28 of 31 with notice then said copy was not a signed copy of Ld. Sole Arbitrator and such copy was received on 05/12/2019 for which the filed petition is well within the limitation period as it is within the period of 30 days provided after passing of statutory three months period for filing petition under Section 34 of the Act i.e., within the outer limits (within which this Court can condone delay) in terms of above referred order dated 23/09/2021 of Supreme Court and the phrase "outer limits (within which the Court or tribunal can condone the delay) and termination of proceedings" was introduced by Supreme Court for the first time in order dated 23/09/2021 whereas said term finds no mention in earlier orders of Supreme Court in Suo Motu Writ Petition (Civil) No. 03/2020.
39. Be that as it may, facts remains that since there is no material on record including arbitral proceedings record with respect to service of any signed copy of impugned arbitral award upon any of the petitioners, it cannot be said that any of the petitions of the petitioners A, B1, B2, B3 were so filed beyond the period of limitation in view of law laid in the case of Dakshin Haryana Bijli Vitran Nigam Ltd. vs M/s Navigant Technologies Pvt. Ltd (supra).
40. Once again I advert to the impugned arbitral award. In impugned arbitral award though Ld. Sole Arbitrator had allowed the application of respondent/claimant/trust for impleadment of petitioners B1, B2, B3 as legal representatives of surety Sh. Pramod K. Roy, who happens to be father of petitioner A and in the cover page in the title also in the impugned arbitral award OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 29 of 31 there is mention of names of petitioners B1, B2, B3 as respondents after the name of petitioner A, but in the operative portion of the award, as has been elicited herein before at the outset, Ld. Sole Arbitrator passed the award that the respondent (petitioner herein) shall pay the claimant the sum of Rs. 5,00,000/- along with interest @ 12% till the date of award and future interest @ 18% from the date of award till the date of payment. It remains unspecified as to which of the present petitioners have been made liable by Ld. Sole Arbitrator to make payment of award sum to respondent/ claimant/trust. In para 5 with respect to decision on the issues, the Arbitral Tribunal has adjudicated the claim of respondent/ claimant/trust against petitioner (respondent therein) and not petitioners (respondents therein) as from para 5 onwards in the impugned arbitral award at no place there is mention of legal heirs of surety Sh. Pramod K. Roy nor liability of legal representatives of surety Sh. Pramod K. Roy i.e., petitioners B1, B2, B3 has been adjudicated.
41. In view of fore going discussions, the impugned arbitral award is accordingly liable to be set aside under Section 34(2)(a)
(iii), Section 34(2)(a)(v) of The Act, Section 34 (2)(b) (ii) of the Act and also under Section 34 (2A) of The Act, as the impugned award is vitiated by patent illegality appearing on the face of the award, as elicited in detail herein above. Reliance placed upon the cases of Associate Builders vs. Delhi Development Authority, (2015) 3 SCC 49, Ssangyong Engineering & Construction Co. Ltd. vs. National Highways Authority of India, 2019 SCC OnLine SC 677, Alupro Building Systems Pvt Ltd vs Ozone Overseas Pvt Ltd (supra), International Nut OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 30 of 31 Alliance LLC (supra) and Impex Corporation & Others (supra).
42. For the foregoing reasons, the petitions are allowed and the impugned award is set aside.
43. The parties are left to bear their own costs.
44. File be consigned to record room.
Digitally signed by GURVINDER GURVINDER PAL SINGH
PAL SINGH Date: 2021.12.24
12:25:37 +0530
ANNOUNCED IN (GURVINDER PAL SINGH)
OPEN COURT District Judge (Commercial Court)-02
th
On 24 December, 2021. Patiala House Court, New Delhi.
(DK) OMP (Comm.) No. 53/2020 Dr. Anshuman Roy vs The Leprosy Mission Trust India & Ors. and OMP (Comm.) No. 61/2020 Mrs Karuna Roy & Ors. vs The Leprosy Mission Trust India & Anr. Page 31 of 31