Delhi District Court
Shri Ajay Kumar vs M/S Home Credit India Finance Pvt. Ltd on 15 September, 2021
IN THE COURT OF MS. BARKHA GUPTA,
DISTRICT JUDGE (COMMERCIAL), NORTH,
ROHINI COURTS : DELHI.
OMP (Comm.) No. 21/2019 (Old No.5133/2019)
Shri Ajay Kumar,
S/o Shri Dharamveer Singh,
R/o H. No. 47, Khasra No.16/12,
Near Vijay Chowk, New Delhi-110042.
...... Petitioner / Objector
VERSUS
1. M/s Home Credit India Finance Pvt. Ltd.,
Formally known as M/s Raj Shree Auto
Finance Private Limited,
Having its office at Sewa Tower,
Tower-A, Ground Floor, Plot No.19,
Sector-18, Udyog Vihar, Gurgaon,
Haryana-122015. ..... Respondent No.1
2. Shri J. N. Yadav,
Rtd. District Judge (Sole Abritrator),
Chamber No.75, Shaheed Sukhdev Singh Block,
Near main Gate no.1, District Court,
Gurgaon-122001. ..... Respondent No.2
Date of Institution : 30.08.2019
Date of final Arguments : 28.08.2021
Date of Decision : 15.09.2021
JUDGMENT
1. The petitioner/objector namely, Shri Ajay Kumar (hereinafter referred as the 'petitioner') has filed the petition/objections under Section 34 of the Arbitration and OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
1 of 20 Conciliation Act, 1996 for setting aside the Ex-Parte Award dated 18.12.2017 (hereinafter referred to as the 'Award') passed by the Sole Arbitrator namely Shri J. N. Yadav (hereinafter referred to as the 'Arbitrator').
2 (a). Brief facts of the case as revealed from the petition / objections filed under Section 34 of the Arbitration and Conciliation Act, 1996 are that the petitioner approached the respondent no.1 for taking personal loan to the tune of Rs.2,00,000/- but at the time of granting the said loan, the officials of the respondent no.1 did not convey him about the terms and conditions of availing the loan and they also played fraud upon him whereby they induced him to sign certain blank and printed documents by stating that it was a mere formality and since, the plaintiff was in dire need of money, so, he signed those documents. He has alleged that the officers of the respondent no.1 also refused to give him the copies of said documents and further, they also did not give him sufficient time to go through the contents of those documents and told him that if he wanted loan, then, he would have to sign those documents immediately, otherwise, he would loose the opportunity to avail the loan from the respondent no.1.
(b) The petitioner has contended that nothing was filled / written on those printed format by the officers of the respondent no.1 in his presence and also alleged that the respondent no.1 filled those documents / printed formats as per its suitability and desire in OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
2 of 20 the arbitration proceedings and by doing so, the respondent no.1 fabricated and forged the documents.
(c) The petitioner has also submitted that the respondent no.1 granted him the loan after taking requisite charges from him and thereafter, he paid Rs.75,000/- by way of EMIs to the respondent no.1 and he also paid a sum of Rs.7,500/- in cash to the respondent no.1 and he has already paid a total sum of Rs.82,500/- to the respondent no.1. The petitioner has stated that thereafter, due to personal problems (i.e. he lost his job and suffered financial losses) and hence, he could not pay the remaining installments about which he also conveyed to the respondent no.1.
(d) He has further submitted that the respondent no.1 also manipulated the Statement of Accounts and it does not mention about the payment, which he had already made to the respondent no.1 despite various requests by him to the respondent no.1. Further, though, he also made several requests to the respondent no.1 to settle his loan account after due correction in the Statement of Account, but, the respondent no.1 did not pay any heed and alleged that the respondent no.1 manipulated the Arbitral Award.
(e) He has also submitted that as such, no demand notice was ever given and / or communicated to him and further, without giving any sufficient and proper opportunity to him to settle the dispute, the respondent no.1 started arbitration proceedings against OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
3 of 20 him with malafide intention, for which, the respondent no.1 also adopted illegal measures to recover the loan amount from him.
(f) The petitioner has further submitted that when he was searching about the status of his case 'Online', then, he came to know that his name was reflected in a case titled as 'M/s Home Credit India Finance Pvt. Ltd. Vs. Ajay Kumar', which was pending in the Court of Ms. Kiran Gupta, ADJ (North), Rohini Courts, Delhi, vide Execution Petition No.714/18. Thereafter, he engaged an advocate and on 22.02.2019, he came to know about the said Execution Petition and he got shocked as the Ex-Parte Award dated 18.12.2017 was passed against him, though, he was never served with any notice / court notice / communication from the respondent no.1 with regard to the appointment of the Arbitrator. Further, the copy of the Arbitral Award was never given to him by the Arbitrator at any point of time and so, he was not having any knowledge about the Arbitral proceedings and he was also not aware of the passing of the Arbitral Award. He has further submitted that as such, there was no arbitration clause in the loan agreement which was executed between him and the respondent no.1.
(g) The petitioner has further contended that on perusal of the Arbitral Award, he came to know that the respondent no.1 played mischief and obtained the Ex-Parte Award dated 18.12.2017 against him in sham Arbitral proceedings. He has further contended that neither any notice about initiation of the arbitration proceedings nor OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
4 of 20 any notice thereafter and not even the copy of the Arbitral Award was ever served upon him or sent to him either by the respondent no.1 or by the Arbitrator.
3(a) The petitioner has prayed that the Arbitral Award may be set aside on the following grounds :-
(i) that the Award is passed against the cannons of natural justice, equity and goods conscience;
(ii) further, he was never ever served with any notice or communication about appointment of the Arbitrator;
(iii) further, he was never served with any notice and was never communicated by the office of the Arbitrator about the initiation of the Arbitration proceedings against him and hence, no opportunity of hearing was given to him by the Arbitrator to put forth his defence;
(iv) further, there was no reason or occasion to initiate the Arbitral proceedings against him by the respondent no.1 as no dispute whatsoever, arose between the parties as he was always ready to settle the loan amount with the respondent no.1;
(v) further, he was never served with the copy of the Award dated 18.12.2017 by any of the respondents;
(vi) further, he came to know about the arbitral proceedings and passing of the Award for the first time on 22.02.2019, when he was searching for his case 'Online';
(vii) further, the respondent no.1 did not mention the office address of the petitioner before the Arbitrator deliberately;
OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
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(viii) further, no proof of delivery about service of the Arbitral notice or any other notice in respect of the Arbitral proceedings or service of copy of the Award upon him have been produced by the respondent no.1 in the execution proceedings;
(ix) further, there was no arbitration clause in the loan agreement executed between him and the respondent no.1 and has also alleged that the executive of respondent no.1 obtained his signatures on the loan documents which were blank and he was never given the copies of the loan documents / agreement by the respondent no.1;
(x) further, the Award is illegal, arbitrary, unjust, perverse and without any authority of law and hence, it must be set-aside;
(b) Further, as the petitioner and his earlier counsel were not having the knowledge of the case, due to which on 26.08.2019, the petitioner engaged another counsel and then, he filed the present petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996.
4. The petitioner alongwith the said petition / objections, has also moved an application under Section 5 of the Limitation Act for condonation of delay in filing the petition/objections under Section 34 of the Arbitration and Conciliation Act, 1996 wherein he has interalia contended that he came to know about the Award only after receiving the summons / notice of the Execution Petition on 20.01.2019 and thereafter, he appeared in the court on 22.02.2019, OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
6 of 20 which was the date fixed and on that day, the matter was referred to the Mediation Centre for the purpose of settlement, however, no settlement could be arrived at. He has also contended that due to aforesaid reason, he could not file the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996 within stipulated period and has prayed that only after failure of settlement in the Mediation centre, he has filed the present petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996. He has prayed that the delay of 4 months and 7 days in filing the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996 may be condoned as it is neither intentional nor deliberate.
5. The petitioner has prayed that the application under Section 5 of the Limitation Act may be allowed and the Ex-Parte Award dated 18.12.2017 may be set aside by allowing his petition/ objections filed under Section 34 of the Arbitration and Conciliation Act, 1996, with costs.
6(a). The respondent no.1 has filed replies to the application filed under Section 5 of the Limitation Act and also to the petition / objections filed under Section 34 of the Arbitration & Conciliation Act, 1996.
(b) The respondent no.1 has contended that the petition / objections filed by the petitioner are barred under the provisions of OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
7 of 20 Section 34(3) of the Arbitration & Conciliation Act, 1996 being filed beyond the period of limitation and further, the application filed under Section 5 of the Limitation Act for condonation of delay is not maintainable as it is not filed under appropriate provision. It has further submitted that no sufficient ground at all is made out to condone the delay in filing the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996.
(c) The respondent no.1 has alleged that the petitioner has not approached the court with clean hands and he has filed the present petition / objections in the month of August, 2019 though the Award was passed on 18.12.2017 i.e. after about 20 months of the passing of Award.
(d) The respondent no.1 has further submitted that the petitioner was well aware of the Arbitration proceedings and atleast, he was having knowledge of passing of the Arbitral Award in the Execution Petition on 20.01.2019 when he received summons in the execution petition as admitted by the petitioner, but still, the petitioner did not file the petition under Section 34 of the Arbitration and Conciliation Act, 1996 within stipulated period.
(e) The respondent no.1 has further submitted that the Arbitrator also sent various notices to the petitioner at his address as mentioned by the petitioner himself in the petition / objections filed by him under Section 34 of the Arbitration & Conciliation Act, OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
8 of 20 1996 but still, the petitioner preferred not to appear before the Arbitrator and further submit that even the copy of the Award was also sent by the Arbitrator to the petitioner at the same address.
7(a) On merits, the respondent no.1 has submitted that the address of the petitioner as mentioned by him in the petition/ objections under Section 34 of the Arbitration & Conciliation Act, 1996 is the same address on which address, the notices were sent by the Arbitrator to the petitioner and further, the same address is also mentioned in the Award the copy of which was sent to the petitioner and hence, the petitioner was duly served with the notices and copy of Award sent to him by the Arbitrator.
(b) The respondent no.1 has further contended that no sufficient ground is shown by the petitioner to allow his petition / objections filed under Section 34 of the Arbitration & Conciliation Act, 1996 on mertis as the case does not fall within the provisions of Section 34(1) of the Arbitration & Conciliation Act, 1996.
8. The respondent no.1 has prayed that, accordingly, the application filed under Section 5 of the Limitation Act and the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 may be dismissed outrightly.
9. I have heard arguments on the application for condonation of delay filed by the petitioner under Section 5 of the OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
9 of 20 Limitation Act to condone the delay in filing the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 as well as final arguments as advanced by Advocate Shri S. K. Shailesh, Learned counsel for the petitioner / objector and Advocate Shri Nikunj Mathur, learned counsel for the respondent no.1 and have given my thoughtful consideration to the rival submissions made by them. I have also gone through the material as placed on record.
10. At the outset, it needs to be discussed that Section 34(3) of the Arbitration and Conciliation Act, 1996 provides as under :
"34(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 three months it may entertain the application within a further period of thirty days, but not thereafter."
11. It would also be appropriate to discuss that Section 34 of the Arbitration and Conciliation Act, 1996 provides 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).
OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
10 of 20 (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 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 OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
11 of 20 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.]"
12. Section 34(3) of the Arbitration and Conciliation Act, 1996 clearly provides that the application for setting aside the Award should be filed within three months when the party receives the arbitral award, which time can be extended for 30 days on the application of the applicant (i.e. the petitioner /objector herein) if sufficient cause is shown.
13. In the case in hand, the petitioner/ objector has not filed any application under Section 34(3) of the Arbitration and Conciliation Act, 1996 for condonation of delay in filing the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996 and rather, he has preferred to file an application under Section 5 of the Limitation Act, however, without going into this technicality, the application under Section 5 of the Limitation Act is OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
12 of 20 treated as if it has been filed under Section 34(3) of the Arbitration and Conciliation Act, 1996 to condone the delay in filing the petition / objections under Section 34 of the Arbitration and Conciliation Act.
14(a). As per record, the petitioner himself has mentioned in the petition / objections filed by him under Section 34 of the Arbitration and Conciliation Act and in the application filed under Section 5 of the Limitation Act that he came to know of the passing of Award against him on 20.01.2019 when he received summons / notice of the Execution Petition filed by the respondent no.1 and thereafter, he appeared in the executing court on 22.02.2019. He has also stated that on that day, the matter was referred to the mediation centre but it could not be settled and hence, after the matter was sent back to the executing court, only then, he filed the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996.
It also needs to be discussed that on one hand, the petitioner has stated that he has filed the petition / objections under Section 34 of the Arbitration and Conciliation Act within period of limitation and on the other hand, he has also moved an application under Section 5 of the Limitation Act for condonation of delay in filing the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996.
(b) As per record and admittedly, the Award was passed on 18.12.2017 and the petition / objections was filed by the petitioner OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
13 of 20 on 29.08.2019. It is mentioned even at the cost of repetition that the petitioner himself has stated that he came to know about the passing of Ex-Parte Award dated 18.12.2017 against him on 20.01.2019 when he received the summons/ notices of the execution petition filed by the respondent no.1. The petitioner also stated that thereafter, he appeared in the executing court on 22.02.2019 and since, the matter was referred to the mediation centre, so, he attended the proceedings at the mediation centre but since, the matter was not settled, so, thereafter, he filed the present petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996, which as per record was filed by the petitioner on 29.08.2019.
15. From perusal of the record, it is revealed that the petitioner / objector has not filed any record to show his genuineness that the matter was pending before the mediation centre for such time or that due to the said mediation proceedings, he was prevented or deprived in any manner in filing the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996.
As admitted by the petitioner, he came to know of the passing of Ex-Parte Award dated 18.12.2017 against him on 20.01.2019 and thereafter, he also attended the executing court on 22.02.2019 and thereafter, he filed the petition under Section 34 of the Arbitration & Conciliation Act, 1996 on 29.08.2019. Even if, the contention of the petitioner is taken as truthful that he received the summons of the execution petition on 20.01.2019 and came to know OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
14 of 20 of passing of Award against him on 20.01.2019 but still he filed the petition / objections under Section 34 of the Arbitration and Conciliation Act, 1996 on 29.08.2019 i.e. after more than 7 months of knowledge and thereafter, the petitioner also appeared in the executing court on 22.02.2019. Accordingly, as admitted by the petitioner, he was having knowledge of passing of Ex-Parte Award against him on 20.01.2019 itself or atleast 22.02.2019, but still, he chose to file the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 on 29.08.2019 for which, he submits that the matter was referred for the settlement and since, the settlement was not arrived at and so, he filed the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 thereafter but it is discussed even at the cost of repetition that the petitioner has not placed anything on record as to how due to said mediation proceedings, he was in any manner was prevented from filing the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996.
16(a) The Hon'ble Supreme Court in the cases titled as (1) 'UOI Vs. Popular Constructions (2001) 8 SCC 470' and (2) 'State of H.P. Vs. Himachal Techno Engineers (2010) 12 SCC 210' interalia observed that the court can condone the delay of maximum 30 days on showing sufficient cause beyond the period of three months allowed to the party and also held that thereafter, even the court has no power to condone further delay even if sufficient cause is shown.
OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
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(b). Accordingly, in the given facts and circumstances, the application under Section 34(3) of the Arbitration and Conciliation Act, 1996 should have been filed within three months, which period can be extended upto period of 1 month only and that too, on application for condonation of delay. In the present case, the petitioner received the summons of execution petition on 20.01.2019 and appeared in the executing court on 22.02.2019 and filed the present petition on 29.08.2019 i.e. that more than seven months of knowledge which factum is fairly admitted by the petitioner.
Accordingly, in the given facts and circumstances, in the considered opinion of the court, no sufficient ground at all is shown by the petitioner to condone the delay in filing the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 and the application filed for condonation of delay in filing the petition/ objections under Section 34 of the Arbitration & Conciliation Act, 1996 is dismissed.
17. The petitioner, in the petition filed by him under Section 34 of the Arbitration and Conciliation Act, 1996, himself has mentioned his address as 'H. No. 47, Khasra No.16/12, Near Vijay Chowk, New Delhi-110042' and in the proceedings conducted by the Arbitrator, the same address of the petitioner / objector herein, is filed by the respondent no.1. Further, from the proceedings of the Arbitrator, it is revealed that the Arbitrator observed that :
"That on 24.08.2017, the counsel for the OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
16 of 20 claimant had appeared and sought time to file statement of claim alognwith supporting documents and evidence by way of affidavit. That on 17.10.2017, the counsel for the claimant had appeared before me and filed their Arbitration Claim along with all necessary documents including Statement of Account and evidence by way of affidavit. However, none had appeared on behalf of the respondent despite the fact that my above detailed acceptance letter had been duly sent to the respondent. The learned counsel for the claimant had submitted that Respondent was deliberately trying to abstain from appearing before the present arbitral tribunal and was avoiding the present proceedings and that the respondent be proceeded ex-parte. However, in the interest of justice, one more opportunity was given to the respondent and fresh notice was issued to the respondent for 15.11.2017. Further, the notice was accompanied with the Arbitration claim alongwith all necessary documents including Statement of Account and evidence by way of affidavit and it was further made clear that it shall be the last opportunity for the respondent to appear before me and in the event of the failure of the respondent to appear on the said date, respondent would be proceeded ex-parte without affording any further opportunity. That accordingly the notice of the arbitration proceedings was duly sent to the respondent alongwith copy of the claim and doucments.
That on 15.11.2017, the Counsel for the Claimant Company ha appeared before me. That the notice of the present arbitration proceedings for the said date alongwith Arbitration Claim, necessary documents including Statement of Account and evidence by way of affidavit had been duly sent to the respondent. That however again, none had appeared on behalf of the respondent on 15.11.2017 despite being awaited.
That the Ld. Counsel for the Claimant Company had submitted that the Respondent was deliberately avoiding the present proceeding and hence the Respondent should be proceeded ex-parte. In support of his above said submissions, the Ld. Counsel for the Claimant Company OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
17 of 20 further relied upon Section 3 of the Arbitration and Conciliation Act, 1996 and Section 114(1) of the Indian Evidence Act. The Ld. Counsel of the Claimant Company further relied upon the judgements reported as (1981) 2 SCC 355 titled as Harcharan Singh Vs. Shivrani, (1989) I SCC 264 titled as Madan & Company Vs. Wazir Jaivir Chand, (1989) 2 SCC 602 and Basant Singh Vs. Roman Catholic Mission reported as 2002 7 SCC 531 and had stated that the respondent had been deemed to have been served as the notice issued by this Tribunal had been dispatched by post at the addresses of the respondent. That the Cunsel for the Claimant had submitted that the Respondent had been duly served with the notices sent by this arbitral tribunal.
That the perusal of the arbitral record also revealed that notices had been issued twice to the respondent and even the Arbitration Claim, necessary documents, Statement of Account and evidence by way of affidavit had been duly sent to the respondent and thus, the respondent was served with the notice for appearance for 24.08.2017 as well as for 15.11.20177, however, the respondent had not appeared before this arbitral tribunal nor any counter / objections / defense has been filed by the respondent. In view of the above submissions made by the Ld. Counsel of the claimant company and the judgements filed by the claimant, I was of the opinion that the respondent was deliberately avoiding the present proceedings, and accordingly vide my order dated 15.11.2017, the respondent was proceeded ex-parte and the matter was fixed for final arguments for 28.11.2017.
18. From the record, it is also shown that the Arbitrator repeatedly sent the notices to the petitioner / objector herein at his last known address, which address is the same as mentioned by the petitioner / objector Sh. Ajay Kumar himself in the petition / objections filed by him under Section 34 of the Arbitration and OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
18 of 20 Conciliation Act, 1996.
Further, from the perusal of Arbitral proceedings, it is also revealed that only after repeatedly sending various notices to the present petitioner / objector at the said address, the Arbitrator proceeded him as Ex-Parte after giving findings that the petitioner / objector herein namely Sh. Ajay Kumar was deemed to have been duly served but he did not join the arbitral proceedings.
Thereafter, the Arbitrator, after due consideration and after going through the documents as filed by 'M/s Home Credit India Finance Private Limited' (who was the claimant before him and the respondent no.1 herein) passed the Ex-Parte Award on 18.12.2017. From the record, it is also shown that the Arbitrator also sent copy of the Arbitral Award to the petitioner / objector on 18.12.2017 through Registered Post dated 22.12.2017 at the same address as mentioned by the petitioner himself in the petition/ objections filed by him under Section 34 of the Arbitration and Conciliation Act, 1996.
19. As per record, the petitioner / objector has miserably failed to show anything on record as to how and why the Arbitrator was biased against him or that the Arbitration agreement was not valid under the Law or that he was not given proper notice of arbitral proceedings 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 or that the composition of OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
19 of 20 the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or the subject matter of the dispute was not capable of settlement by arbitration under the law for the time being in force or the Arbitral Award is in conflict with he public policy of India or the making of the Award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81 or the Award is in contravention with the fundamental policy of Indian Law or it is in conflict with the most basic notions of morality or justice or that there is contravention of fundamental policy of Indian law or that the Award is vitiated by patent illegality appearing on the face of the Award or that the principles of natural justice were not followed.
20. In considered opinion of the court, in view of totality of facts and circumstances of the case, in view of settled proposition of Law and in view of aforesaid discussion, no sufficient ground is made out on merits to allow the petition / objections filed under Section 34 of the Arbitration & Conciliation Act, 1996. Accordingly, the petition / objections under Section 34 of the Arbitration & Conciliation Act, 1996 is hereby dismissed being devoid of any merits. No order is passed as to costs. File be consigned to the Record Room, as per rules after compliance of necessary legal formalities.
Announced today i.e. on 15.09.2021 (BARKHA GUPTA) District Judge (Commercial Court) North:ROHINI:DELHI/15.09.2021 OMP (Comm.) No. 21/2019 (Old No.5133/2019) Shri Ajay Kumar Vs. M/s Home Credit India Finance Pvt. Ltd. & Anr.
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