Delhi District Court
Ms. Jyotsna Sharma vs M/S Fiit Jee Ltd on 28 October, 2010
ID No.02401C0509232005
IN THE COURT OF SHRI PANKAJ GUPTA, ADDL. DISTRICT
JUDGE (CENTRAL13), TIS HAZARI COURTS : DELHI.
Suit No.73/2010
Ms. Jyotsna Sharma,
13, Ashoka Police Lines,
Kautiliya Marg, Chanakya Puri,
New Delhi - 110 021. ............Plaintiff
Versus
M/s FIIT JEE Ltd.
Through its Managing Director
ICES House,
29A, Kalusarai, Sarvpriya Vihar,
New Delhi - 110 016. ...........Defendant
Date of Institution : 18.05.2005
Date when the case reserved for order : 28.10.2010
Date of Order : 28.10.2010
O R D E R
1. By this order I shall dispose of the objection filed by the plaintiff under section 34 of the Arbitration and Conciliation Act, 1996 (the Act) for setting aside the award dated 07.03.2005 passed by Shri Subhash Tagra, Sole Arbitrator.
2. Brief facts relevant for the disposal of the present objection are that the plaintiff joined the defendant as Jr. Public Relation Executive on the terms and conditions mentioned in the appointment letter dated 21.08.2002. In the plaint, it is stated that later the plaintiff decided to leave the 1 Ms. Jyotsna Sharma vs. M/s FIIT JEE Ltd.
defendant and intimated Shri D K Goel, Managing Director who assured her that her resignation would be accepted and notice period of 03 months would be waived and accepted her resignation on 07.03.2004. However, on 04.09.2004, the defendant issued a notice malafidely and demanded Rs. 40,330/ from the plaintiff. As such, the disputes arose between the parties. Clause 18 (b) of the service rules provides that the disputes should be referred to the arbitrator whose decision shall be final. Consequently, the defendant invoked the arbitration clause and appointed and referred the matter to Shri Subhash Tagra, Sole Arbitrator. Vide letter dated 26.10.2004, the plaintiff opposed the appointment of the arbitrator and requested to pay her dues. Instead, on 09.11.2004, the arbitrator issued the notice of hearing. On 18.11.2004, the plaintiff submitted to the arbitrator that the arbitration proceedings were invalid and his appointment was without her consent. Subsequently, the plaintiff stopped appearing and consequently the arbitrator conducted the proceedings exparte. Hence, it is prayed that the award dated 07.03.2005 be set aside.
3. Notice of the suit was issued to the defendant. In response thereto, the defendant filed the written submissions.
4. I have heard the Ld. Counsels for the parties and have perused the material available on record including the arbitration record.
5. Admittedly, arbitration agreement was executed between the parties and the arbitration award was passed under Arbitration and Conciliation Act, 1996.
6. In SBP & Company vs. Patel Engineering Ltd. and another, 2 Ms. Jyotsna Sharma vs. M/s FIIT JEE Ltd.
reported in 2005 (3) Arb. LR 285 (SC), the Hon'ble Supreme Court held:
"In a case where an arbitral tribunal has been constituted by the parties without having recourse to section 11 (6) of the Arbitration and Conciliation Act, 1996 the arbitral tribunal will have the jurisdiction to decide all matter as contemplated by section 16 of the Act."
7. Counsel for the plaintiff pleaded that the composition of the arbitral tribunal was not in accordance with section 11 of the Act. It is also pleaded that the arbitrator had not followed the mandatory provision of Act; had no territorial jurisdiction to entertain the claim of the defendant; and passed the award without any evidence in favour of the defendant. The plaintiff also challenged the various clauses of the appointment letter. The plaintiff admitted the appointment letter dated 21.02.2002 and service rules including clause 18 (d) of the same. The plaintiff also admitted the receipt of letter dated 04.09.2009 vide which the defendant demanded Rs.40,330/ and in case of failure, it intimated to invoke the arbitration clause i.e. clause 18 (3) of the service rules and also named Shri Subhash Tangra, as arbitrator. In response thereto, the plaintiff vide her letter dated 26.10.2004 disputed her liability to pay the amount; refused to submit to the arbitration on the plea that the disputes should be settled by the Civil Court called upon the defendant to withdraw the arbitration proceedings as the plaintiff was not agree to the same and also opposed the appointment of Shri Subhash Tagra as arbitrator. From the said letter of the plaintiff, it is revealed that the plaintiff has not disputed the service rules containing the arbitration clause but showed her reluctance to go for the arbitration. It implies that the plaintiff sought unilateral withdrawal from the arbitration agreement though she had not disputed the existence of the same.
3 Ms. Jyotsna Sharma vs. M/s FIIT JEE Ltd.
8. Admittedly, the plaintiff received the arbitration notice dated 09.11.2004 vide which she was directed to appear before the arbitrator on 06.12.2004 at 4.00 p.m. It is also an admitted fact that in response thereto, the plaintiff sent a reply dated 18.11.2004 and submitted that the arbitration proceedings were prejudicial to her and the appointment of the arbitrator was without her consent. Perusal of the record reveals that thereafter, the plaintiff stopped appearing before the arbitrator who passed the award later on. It implies that the plaintiff participated in the arbitration proceeding though she stopped appearing later on.
9. Perusal of the record reveals that the plaintiff again and again challenged the authority of the defendant to invoke the arbitration clause but had not disputed the existence of the service rules containing the arbitration clause and its due acceptance by her. As discussed above, the plaintiff had the due notice of the appointment of the arbitrator and the date of hearing. It is also an admitted fact that the defendant has not invoked section 11 of the Act for redressal of her grievances, if any. Hence, once the arbitrator was appointed and she was not satisfied with the composition of the arbitral tribunal, then she should have taken the recourse under the relevant provisions of the Act. Similarly, if according to the plaintiff, the disputes were not covered by the arbitration clause and the arbitrator lacked territorial jurisdiction, she should have challenged the same under section 16 of the Act. Instead, the plaintiff preferred to stay away from the arbitration proceedings. Further, the plaintiff has failed to show how the award is against the public policy.
10. In view of the foregoing judgment and discussions, the present 4 Ms. Jyotsna Sharma vs. M/s FIIT JEE Ltd.
objections are devoid of merits. Therefore, the suit is dismissed. No order as to cost.
File be consigned to Record Room.
Announced in the open court, Today i.e. on 28th of October, 2010.
(PANKAJ GUPTA) ADJ(CENTRAL13)/DELHI 28.10.2010 5 Ms. Jyotsna Sharma vs. M/s FIIT JEE Ltd.