Calcutta High Court
Dilbag Singh Gosal vs Cholamandalam Investment And on 5 December, 2019
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD-44
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
A.P. No. 146 of 2019
DILBAG SINGH GOSAL
Versus
CHOLAMANDALAM INVESTMENT AND
FINANCE COMPANY LTD. & ANR.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 5h December, 2019
Appearance:
Mr. Priyankar Saha, Adv.
...for the petitioner
Mr. Paritosh Sinha, Adv.
Ms. Shrayashee Das, Adv.
Ms. Aishwarya Chatterjee, Adv.
...for the respondents
Shaurabh Guha Thakurata, Adv.
.........for the arbitrator The Court: In this application under Section 34 of the Arbitration and Conciliation Act, 1996 as amended by Act 3 of 2016 (in short "the Act of 1996"), the petitioner has challenged the award made and published by the arbitrator on December 28, 2018.
Considering the arguments advanced by the petitioner to assail the impugned award on December 4, 2019, this Court directed the arbitrator to produce the records of the arbitral proceeding. Today the arbitrator, Shri Shaurabh Guha Thakurata, Advocate has produced the records of the arbitral proceeding and the learned counsel appearing for the respective parties was allowed to peruse the same. In the impugned award the arbitrator has held that upon 2 examination of the pleadings filed and documents on record and the oral evidence by examination of the witness of the claimant, he was satisfied that the respondents failed and neglected to make payment of the installment stipulated in the loan cum hypothecation agreement. However, the records of the arbitral proceeding produced by the arbitrator do not disclose a scrap of document to substantiate that the claimant, being the respondent herein had at all adduced any oral evidence. Even the arbitrator admits that the claimant has not adduced any oral evidence. On an enquiry from this Court, the arbitrator further submitted that in the year 2018 when arbitral proceeding resulting in the making of the impugned award, was in progress he was holding another the arbitral proceedings where the present respondent was the claimant. However, the records of the arbitral proceeding do not show that the arbitrator sought to inform the respondent of the same. When the claimant, the respondent herein had adduced no oral evidence to prove their claim in the arbitral proceeding, the above recording by the arbitrator in the impugned award that he had considered the oral evidence by examination of the witness of the claimant is perverse and does not fall short of committing fraud on statute the impugned award made by the arbitrator shocks the conscience of this Court. In view of the decision of the Supreme Court in the case of Associate 3 Builders -vs- Delhi Development Authority, reported in (2015) 3 SCC 49.
For the reasons aforesaid, the impugned award made by the arbitrator on December 28, 2018 is set aside. The arbitrator shall pay costs assessed at 300 GMs to the High Court Legal Services Authority within December 20,2019 from date. It is expected that good sense will prevail over the arbitrator and henceforth he shall not hold any arbitral proceeding where the present respondent is a party. The records produced by the arbitrator shall be kept in a sealed cover. The petitioner will be at liberty to take back the original documents, if any, comprising the records of the arbitral proceeding. Needless to mention that the present respondent shall also be entitled to initiate fresh arbitral proceeding against the present petitioner.
Since the arbitral award is set aside after considering the records of the arbitral proceeding, the respondents are not called upon to file any affidavit and any allegation made against them shall be deemed not to have been admitted.
The application will appear, under the heading "To Be Mentioned", on January 06, 2020 to ascertain if the arbitrator has paid the costs as directed above.
(ASHIS KUMAR CHAKRABORTY, J.) TO