Delhi District Court
Pramod Kumar Sharma vs . M/S Style Show & Sale on 3 December, 2014
Pramod Kumar Sharma vs. M/s Style Show & Sale
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
ARB. No. 210/14
Case ID No. 02406C0234622013
Pramod Kumar Sharma
S/o Sh. J. P. Sharma
R/o D224, Krishna Park,
Devli Road, New Delhi.
...............Petitioner
Versus
M/s Style Show & Sale
Having office at :
D44/5, East of Kailash,
New Delhi.
Through its Partner
Sh. Vijay Chaudhary
..............Respondent
Date of Institution : 31.08.2013
Date of reserving the Judgment : Oral
Date of pronouncement : 03.12.2014
Decision : Dismissed
APPEAL UNDER SECTION 34 OF THE ARBITRATION AND
CONCILIATION ACT, 1996 READ WITH ORDER XLIII OF CPC
AGAINST AWARD DATED 01.06.2013 PASSED BY SHRI AMIT SINGH;
SOLE ARBITRATOR, NEW DELHI IN CASE TITLED AS "M/S STYLE
SHOW & SALE VS. PROMOD KUMAR SHARMA" IN ARB CASE NO.
05/2007
Arb.210/14 Page 1 of 11
Pramod Kumar Sharma vs. M/s Style Show & Sale
JUDGMENT
1. This judgment shall dispose off the objection petition/appeal under Section 34 of the Arbitration and Conciliation Act, 1996.
2. Arguments on the objection petition heard.
3. By way of present objection petition filed under Section 34 of the Arbitration and Conciliation Act, 1996, the objector has prayed for setting aside the award dated 01.06.2013 passed by Learned Sole Arbitrator Sh. Amit Singh in Arbitration Case No. 05/2007 titled as "M/s Style Show & Sale vs. Pramod Kumar Sharma".
4. By way of his award dated 01.06.2013, Learned Sole Arbitrator allowed the claim of the respondent for recovery against the objector.
5. The respondent had earlier invoked an arbitration against the objector as well as one Sh. Raghubir Singh Banwala and Sh. Rohtash claiming that the defendants had gone on some exhibition arranged by the respondent claimant and had not made the complete payment for their participation in the exhibition and the services provided by respondent claimant.
6. Earlier an award dated 12.03.2010 was jointly passed against all the three persons i.e. present objector, Raghubir Singh and Rohtash. Vide order dated 14.12.2011, Hon'ble High Court of Delhi set aside the award dated 12.03.2010 qua the objector, Sh. Pramod Kumar Sharma only on the ground that he was wrongly proceeded exparte in the said award without being Arb.210/14 Page 2 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale properly served. The arbitration proceedings against the objector were again commenced and the impugned award dated 01.06.2013 was passed.
7. Sh. Prem B. Kshetri appearing for the objector has submitted that there was no arbitration agreement between the parties and since the beginning of the arbitration proceedings, objector was taking up this objection that Arbitration Tribunal had no jurisdiction in the absence of arbitration agreement. Learned Sh. Kshetri submits that the Tribunal has wrongly usurped the jurisdiction. Learned Sh. Kshetri further submits that the arbitrator misconducted himself by not allowing the objector to properly lead his case. He submits that a number of times objector had requested the arbitrator to recuse himself from the case because the objector had lost faith upon him, but the arbitrator, ignoring the requests of the objector, continued the proceedings. He submits that the objector even preferred an application before the Hon'ble High Court of Delhi for change of Arbitral Tribunal, but before the proceedings of that application could conclude, Learned arbitrator hurriedly concluded the arbitration proceedings and the application of the objection was rendered infructuous. He submits that for this reason only the objector could not present his case properly before the Learned Arbitrator.
8. Learned Sh. Shohit Choudhary has vehemently refuted all the arguments advanced by Learned Sh. Kshetri and submits that the objector has no case and the arbitration proceedings Arb.210/14 Page 3 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale were conducted fairly and the record of the arbitration proceeding itself reflects that objector was given proper opportunity and a reasoned order has been passed by Learned Arbitrator on all the issues raised by him.
9. The court has considered the arguments advanced by Learned counsel for parties.
10. In support of his arguments, Learned Sh. Kshetri has drawn the attention of the court to the arbitral record which contains the Exhibitor's ApplicationcumContract Form Mark C. This form appears to have been signed by one Sh. Raghubir Singh Banwala. On the top of the form, the company's name is mentioned as M/s Inter Tech Corporation. Contacted persons are mentioned as (1) Raghubir Singh Banwala, (2) Rohtash, & (3) Pramod Kumar Sharma. Learned Sh. Kshetri has submitted that the form itself reflects that the name of Pramod Kumar Sharma has been later on added. He further submits that the status of the organization on behalf of whom the contract was entered into by the respondent is shown as proprietorship according to this form.
11. Learned Sh. Kshetri has then drawn the attention of the court to the legal notice allegedly issued by the respondent to Raghubir Singh Banwala, Rohtash and Pramod Kumar Sharma. In this legal notice, the respondent has addressed these persons as proprietors/partners of M/s Inter Tech Corporation. In the claim petition before the Learned Arbitrator again the respondent has referred the defendants as proprietors/partners.
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12. It is, therefore, submitted by Learned Sh. Keshetri that the objector did not sign any arbitration agreement and the claimant himself is not clear about the relation of the respondent with the alleged company/organization M/s Inter Tech Corporation. He submits that claimant is not even clear about the status of M/s Inter Tech Corporation, whether it is a proprietorship, partnership or a company. He submits that the award is, therefore, liable to be set aside.
13. It is not the dispute that all these issues, raised herein before by the objector were also raised by him before the Learned Arbitrator by way of filing written statement in response to the claim petition of respondent. But the objector did not lead any evidence on any of these issues.
14. It is rightly submitted by Learned Sh. Shohit Choudhary that all these issues/submissions constitute the factual issue, which could have been well adjudicated by the arbitrator on the basis of evidence and material led by the parties. The objector chose not to lead any evidence before the arbitrator. Even then, on the basis of the available material brought on record, Learned arbitrator had considered the issue of jurisdiction raised by objector in his written statement as well as in a separate application under Section 16 of the Arbitration and Conciliation Act, 1996 filed by the objector. In para16, 17, 18, 19, 20 & 21 running from page No.9 to page No.13 of the award, Learned arbitrator has dealt with this issue in detail. The fact of the absence of signature of the objector upon the Exhibitor's Arb.210/14 Page 5 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale ApplicationcumContract Form has been dealt in detail.
15. In support of his submissions, Learned Sh. Kshetri has relied upon the judgments titled as Indowind Engery Limited vs. Wescare (India) Limited & Another (2010) 5 Supreme Court Cases 306 ; Batliboi Limited vs. Union of India & Others 2014 (2) Arb. LR 79 ; Harjinder Pal vs. Harmesh Kumar 2009 (1) Arb. LR 261 (Delhi) and Saagrr Infra Limited vs. Pioneer Tools & Hardware 2013 (2) Arb. LD 363 (Madras).
16. On the other hand, Learned Sh. Shohit Choudhary has relied upon the judgments titled as Engineering Development Corporation vs. Municipal Corporation of Delhi 2000 I AD (Delhi) 460 and Lt. Col. (Retd.) P. R. Choudhary & Others vs. Narendra Dev Relan & Others 2009 (3) R.A.J. 31 (Del).
17. Learned Sh. Kshetri submits that in the case of Indowind Engery Limited vs. Wescare (India) Limited & Another (Supra), the Hon'ble Apex Court has refused to consider the signature of a common Director of one company to construe an agreement on behalf of other company as well. He submits that the objector herein is an independent entity as Pramod Kumar Sharma and signature of Sh. Banwala cannot be considered on his behalf.
18. The court is of the opinion that facts and circumstances of the present case are distinct from the case of Indowind Engery Limited vs. Wescare (India) Limited & Another (Supra). In the said case, there was nothing to suggest that the other company in that case ever acted upon the agreement entered into between the parties, which contained arbitration clause. In the Arb.210/14 Page 6 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale present case, Learned Arbitrator has considered in details that the objector had acted upon the offer of the claimant, which contained the arbitration clause also.
19. The facts and circumstances of the case of Batliboi Limited vs. Union of India & Others (Supra) were again different from the facts and circumstances of the present case. In the said case, the Hon'ble High Court of Punjab & Haryana has held that any agent or SPA of the party or the company or business cannot be held liable for the acts performed by him under said agency.
20. In the case in hand, the petitioner did not claim himself as an agent nor claimant had raised his claim against the objector as an agent/employee of M/s Inter Tech Corporation or Rohtash Or Raghubir Singh Banwala.
21. In the case titled as Harjinder Pal vs. Harmesh Kumar (Supra) relied upon by Sh. Kshetri, the arbitration agreement was subsequently inserted between the parties. In the present case, there are no such allegations. There is only one document i.e. Exhibitor's ApplicationcumContract Form, which contains arbitration agreement on backside.
22. In the case titled as Saagrr Infra Limited vs. Pioneer Tools & Hardware (Supra), relied upon by Learned Sh. Kshetri, a bill was issued by the seller against the goods purchased. The bill contained the signature of seller. The overleaf of the bill was having some arbitration clause. It was held by Hon'ble High Court of Madras that the bill was not signed by the purchaser and therefore, no arbitration clause was entered into between Arb.210/14 Page 7 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale the parties.
23. The facts and circumstances of the present case are different. In the present case, Learned Arbitrator has categorically observed that arbitration agreement was signed by one of the defendant on behalf of others and all the defendants had acted upon the Exhibitor's ApplicationcumContract Form, which contained the arbitration agreement.
24. In the judgment titled as Engineering Development Corporation vs. Municipal Corporation of Delhi (Supra), Hon'ble High Court of Delhi in paragraph 4 has held as under:
"4. Since the arbitration agreement is not required to be signed separately, it is only required that it should be in writing and it is in writing. Further since the parties have acted upon the said agreement contained in the conditions of the contract annexed with the tender document, the respondent cannot claim that there was no arbitration agreement. It may be mentioned that an arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a definite legal relationship whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a formal or informal agreement but in writing. Subsection (4) of Section 7 of the Act clarifies that an arbitration agreement is in writing if it is contained in : (a) a document signed by the parties; (b) an exchange of letters, telex, telegram or other means of telecommunication which provide a record of the agreement or (c) an exchange of Arb.210/14 Page 8 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale statements of claim and defence in which the existence of the agreement is alleged by one party and non denial by the other. Besides, subsection (5) of Section 7 provides that the reference in a contract to a document containing any arbitration clause constitutes an arbitration agreement, if the contract is in writing and the reference is such to make that arbitration clause part of the contract. Here, through no formal agreement has been executed but tender document indicating certain conditions of contract contains arbitration clause. On the basis of these conditions in tendered tendor was by the petitioner, was accepted and the petitioner was allowed to got ahead to perform the contract. Since at least general conditions of the tender provide for the arbitration clause, coupled with exchange of letters allowed the petitioner to perform the contract, it has to be held that there was an arbitration agreement in between the parties even in the absence of formally signed agreement."
25. In the judgment titled as Lt. Col. (Retd.) P. R. Choudhary & Others vs. Narendra Dev Relan & Others (Supra), Hon'ble High Court of Delhi in paragraphs No. 9 and 10 has held as under:
"9. The argument of the plaintiffs in the present case proceeded on the misconception that Section 7 requires not only an agreement in writing but also such agreement to be signed by the parties. The same is not the language of Section 7. To constitute an arbitration agreement, it is not necessary that the writing should bear the signatures of the parties. Requirement of law is only that it should be in writing.
10. There is no change in this regard in Arb.210/14 Page 9 of 11 Pramod Kumar Sharma vs. M/s Style Show & Sale the definition of arbitration agreement under 1940 Act and under the 1996 Act. Under 1940 Act also the arbitration agreement was merely required to be in writing and did not require any signatures. In fact, the 1996 Act takes care to emphasis that an agreement signed by the parties is just one of the forms in which the arbitration agreement may be made but it can be in the manners provided in Section 7(4) (b) & (c) and Section 7(5) also."
26. It is important to mention that the objector admits that he participated in the exhibition held at abroad by the respondent. The objector has not placed any document through which he participated in the exhibition. He has not even alleged that any document other than Exhibitor's ApplicationcumContract Form was signed by him. In the facts and circumstances, Learned Arbitrator has rightly given his view that the objector went to participate in the exhibition through that document.
27. Hence, the court is of the opinion that findings of Learned Arbitrator about his jurisdiction are not contrary to the facts and circumstances brought on the arbitral record.
28. The court do not even find any substance in the submission of Learned Sh. Kshetri that the Learned Arbitrator misconducted himself. When there was no stay of the arbitration proceedings by the Hon'ble High Court of Delhi, Learned Arbitrator did not commit any misconduct by proceeding further in the case.
29. Objection petition is accordingly dismissed.
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30. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 03.12.2014 ADJ05 (SOUTH DISTRICT)
(Judgment contains 11 pages) SAKET COURTS, NEW DELHI
Arb.210/14 Page 11 of 11