Delhi District Court
Amit Jain vs Phoenix Asset Reconstruction P. Ltd on 22 September, 2016
IN THE COURT OF SHRI TALWANT SINGH
DISTRICT& SESSIONS JUDGE (EAST)
KARKARDOOMA COURTS, DELHI
S.No.424/16
CNR No.DLKA010013632015
Amit Jain
R/o F46 B, 1st Floor,
Gali No. 12, Mangal Bazar,
Laxmi Nagar, Delhi110092. ....Petitioner
Versus
1. Phoenix Asset Reconstruction P. Ltd.
Regd. Office at:
7th Floor, Dani Corporate Park
158, C.S.T.Road
Kalina, Santacruz (E)
Mumbai400098.
2. M/s Barclays Bank PLC
Branch Office:
Erose Corporate Tower,
Nehru Place, Delhi110019.
3. Shri Prakash Kashinath Hushing
At: Plot No. 25,Shop No. D5,
Sai Krupa Cooperative Housing Society
Mhada Colony, Mulund (East)
Mumbai400081. .... Respondents
S.No.424/16 Amit Jain vs. Phoenix Asset Reconstruction P. Ltd. Etc. Page 1 of 6
O R D E R Petitioner Amit Jain has filed an objection petition under Section 34 of the Arbitration & Conciliation Act, 1996 for setting aside exparte arbitral award dated 29.01.2015 passed against him.
2 In the objections petition, it is stated that the petitioner took a loan of Rs.3,00,000/ from the Barclays Bank; the applicant continued to pay installments of Rs.9,452/ per month, but after 16 months, he could not make payment of installments due to loss in his business; Barclays Bank filed a complaint under Section 138 of Negotiable Instruments Act against the petitioner where matter was settled between the parties as full and final settlement for Rs.80,000/ and that matter was withdrawn. Despite settlement of the matter, arbitration proceedings were initiated ; the petitioner received letter of arbitral proceedings, same was duly replied through his counsel dated 11.09.2014 and same was delivered to the arbitrator on 10.10.2014 but Ld. Arbitrator has not mentioned the same in his proceedings. The applicant authorized Sh. Yogendra K. Kanchal Advocate to appear before Ld. Arbitrator, who sent his assistant Advocate Mr. Lalit Chanana at the venue on 12 th September, 2014, but neither the arbitrator nor anybody from the office of claimant or his Advocate was present. Assistant of Arbitrator Mr. Sawant met who informed that Ld. Arbitrator was not well and next date would be S.No.424/16 Amit Jain vs. Phoenix Asset Reconstruction P. Ltd. Etc. Page 2 of 6 informed through notice, but the petitioner was proceeded exparte on 01.10.2014.
3 It is stated that the petitioner took loan from Barclays Bank and has nothing to do with Phoenix Asset Reconstruction Company and he was never intimated about any assignment in this regard. Applicant is not liable to pay any amount to the claimant. It is also submitted that Ld. Arbitrator had no jurisdiction to adjudicate the claim of claimant.
4 Notice of objections petition was issued to the respondents. Record of Arbitral proceedings was received. 5 Reply has been filed on behalf of M/s Phoenix Asset Reconstruction Pvt. Ltd. wherein it has been denied that the petitioner was regular in making payment; it has been denied that the petitioner was never informed about transfer and assignment of loan to the present respondent. It is submitted that as per loan agreement, it is clearly mentioned that arbitration shall be held either at Mumbai/New Delhi/Chennai or Bangalore or Calcutta. It is submitted that the petitioner is liable to pay the amount of award and the proceedings under Section 138 of N.I. Act and arbitral proceedings are parallel and different to each other.
6 I have heard Ld. Counsel for the petitioner and perused the record. None appeared on behalf of respondent for
arguments. Liberty was given to the respondent to address arguments S.No.424/16 Amit Jain vs. Phoenix Asset Reconstruction P. Ltd. Etc. Page 3 of 6 even upto the date of decision. However, none appeared and addressed arguments on behalf of the respondent. 7 It is admitted case of the petitioner that he had notice of the arbitral proceedings. Perusal of the arbitral proceedings reveal that legal notice dated 08.07.2014 was dispatched to the petitioner for making payment of the amount due and also for transfer and assignment of loan in favour of Phoenix Asset Reconstruction Co. Pvt. Ltd. and postal receipts is filed on record. Thereafter, first notice of arbitral proceedings is dated 28.07.2014 and same was sent to the petitioner at correct address as given in the present petition on 28.07.2014 as per postal receipt filed on record. Thereafter again notice was sent to the petitioner on 25.08.2014, dispatched on the same address for 12.09.2014. Ordersheet dated 2.09.2014 shows that none was present on behalf of the petitioner either on 25.08.2014, 12.09.2014 and again notice was sent to the petitioner for 01.10.2014 and this notice was dispatched to the petitioner on his correct address on 12.09.2014 itself. On 01.10.2014, none was present for the petitioner and thus in view of Section 3 of the Arbitration & Conciliation Act, respondent/petitioner was deemed to have been served and matter was fixed for filing evidence of the claimant. Thereafter on 29.01.2015, none was present for the petitioner, evidence of the claimant was taken on record and petitioner was proceeded exparte; arguments were heard and award was passed.
S.No.424/16 Amit Jain vs. Phoenix Asset Reconstruction P. Ltd. Etc. Page 4 of 6Copy of the arbitral award was sent to the petitioner on 02.02.2015 as per postal receipt filed on record. Legal notice as well as notices were sent to the petitioner at his correct address as given in the present petition but he did not intentionally appear.
8 There is nothing on record to prove that the petitioner had engaged Sh. Yogender K.Kanchal Advocate to appear before the Arbitrator or he sent Mr. Lalit Chanana to the venue of arbitration proceedings or he met Mr. Sawant, assistant of Ld. Arbitrator. No affidavit of any such person has been filed in support of this contention, therefore, it cannot be said that any such person appeared in the arbitral proceedings on behalf of the petitioner or that nobody was present in the office of Ld. Arbitrator.
9 As notices of arbitral proceedings were sent at the correct address of the petitioner, he had notice of the same, it can not be said that he did not have any notice of transfer or assignment of loan in favour of M/s Phoenix Asset Reconstruction Pvt. Ltd. 10 As regards settlement of account in case under Section 138 of Negotiable Instruments Act, the matter was settled between the parties finally. Copy of the same has been filed on record. Perusal of the same reveals that that was a case for dishonour of cheque for a sum of Rs.58,712/. Perusal of the ordersheet dated 01.12.2012 passed in said case shows that said matter was settled qua the cheque in question. It nowhere shows that matter with regard to S.No.424/16 Amit Jain vs. Phoenix Asset Reconstruction P. Ltd. Etc. Page 5 of 6 entire loan was settled between the parties.
11 In view of above discussion, I am of the view that the petitioner has not been able to support any of the grounds taken in present objections petition. There is no merit in the present petition. Accordingly petition under Section 34 of the Arbitration & Conciliation Act is hereby dismissed. Record of arbitration proceedings be sent back along with copy of the order. File be consigned to record room.
Announced in the open Court ( TALWANT SINGH )
Dated: 22.09.2016 District & Sessions Judge (East)
Karkardooma Courts : Delhi
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