Bombay High Court
Iifl Finance Ltd vs Harshad Hirji Thakkar on 12 June, 2023
Author: Bharati Dangre
Bench: Bharati Dangre
2023:BHC-OS:4737
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM. ARBITRATION APPLICATION NO.19 OF 2022
IIFL Finance Ltd. .. Applicant
Versus
Harshad Hirji Thakkar .. Respondent
...
Mr.Priyank Kapadia with Mr.Vishal Sapre i/b Dua Associates
for the Applicant.
...
CORAM: BHARATI DANGRE, J.
DATED : 12th JUNE, 2023 P.C:-
1. An affdaavit of seravice dated 22/07/2022 record the publication of notice upon the respondent in "The Free Press"
and "Naavshakti", the two daily newspapers being circulated in Mumbai.
The substituted seravice was necessitated, as the respondent remained absent, despite notice being issued.
The substituted seravice haaving been effected and, since, there is no appearance on behalf of the respondent, I haave heard the learned counsel for the applicant and perused the application.
M.M.Salgaonkar
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2. The application is fled, seeking appointment of the learned counsel named or any other ft person, to be appointed as a sole Arbitrator, in terms of the arbitration clause contained in the Master Credit Facility Agreement dated 15/09/2018 executed between the parties.
The agreement placed on record would reaveal that the respondent aavailed the credit facility from the Applicant, a non-banking fnance company, acting as Lender and the Borrower being described in the schedule as an indiavidual, indicated in the Agreement. The Agreement specify the eavent of default and, since, there was no discharge of obligation by the Borrower, the arbitration was inavoked in terms of clause No.16.2 of the Agreement, which proavided that in the wake of any dispute arising by and between the parties, they should be referred to arbitration in accordance with the proavisions of the Arbitration and Conciliation Act. The arbitration proceedings were to take place in Delhi or at such a place, as may be decided by the Lender.
Though the Arbitration Agreement stipulates that the Arbitrator shall be appointed by the Lender, I do not think that such discretion can be allowed to be exercised by the Lender, as it would amount to unilateral appointment, which is not permissible.
In the wake of the aboave, since the arbitration is inavoked and the Borrower has failed to respond to the arbitration notice, within a period of 30 days, I deem it appropriate to grant the application, by appointing the sole Arbitrator, on the following terms and conditions.
M.M.Salgaonkar
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TERMS OF APPOINTMENT
(a) Appointment of Arbitrator :
Mr.Atul Daga, an Adavocate of this Court, is hereby appointed as a Sole Arbitrator to decide the disputes and differences between the parties referred aboave.
(b) Communication to Arbitrator of this order :-
(i) A copy of this order will be communicated to the learned Sole Arbitrator by the Adavocates for the applicant/ petitioner within one week from the date this order is uploaded.
(c) Disclosure : The learned Arbitrator, within a period of 15 days before entering the arbitration reference, shall forward a statement of disclosure as per the requirement of Section 11(8) read with Section 12(1) of the Arbitration and Conciliation Act, 1996, to the Prothonotary & Senior Master of this Court, to be placed on record of this application, with a copy to be forwarded to both the parties.
(d) Appearance before the Arbitrator :The parties shall appear before the Sole Arbitrator within a period of two weeks from today and the learned Arbitrator shall fx up a frst date of hearing in the week commencing from 26/06/2023. The Arbitral Tribunal shall giave all further directions with reference to the arbitration and also as to how it is to proceed.
(e) Contact and communication information of the parties : Contact and communication particulars are to be proavided by both sides to the learned Sole Arbitrator. This information shall include a avalid and functional E-mail address as well as mobile numbers of the parties, participating in the process as well as of the Adavocates.
(f) Section 16 application : The respondent is at liberty to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act. All contentions are left open.
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(g) Fees : The sole Arbitrator shall be entitled to the fees prescribed under the Bombay High Court (Fee Payable to Arbitrators) Rules, 2018 and the arbitral costs and fees of the Arbitrator shall be borne by the parties in equal portion and shall be subject to the fnal Award that may be passed by the Tribunal.
(h) Venue and seat of Arbitration : Parties agree that the avenue and seat of the arbitration will be in Mumbai.
(i) Procedure : These directions are not in derogation of the powers of the learned Sole Arbitrator to decide and frame all matters of procedure in arbitration.
3. All contentions of both the sides are left open, to be raised by the respectiave parties before the Arbitral Tribunal, in accordance with law.
4. Comm.Arbitration Application (L) No.19 of 2022 stands disposed off in the aforestated terms.
( SMT. BHARATI DANGRE, J.) M.M.Salgaonkar ::: Uploaded on - 13/06/2023 ::: Downloaded on - 14/06/2023 10:42:38 :::