Bombay High Court
Rajesh Shah vs Kotak Mahindra Investment Ltd on 30 January, 2020
Author: G. S. Patel
Bench: G.S. Patel
926-CARBP73-18.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM ARBITRATION PETITION NO. 73 OF 2018
Rajesh Shah ...Petitioner
Versus
Kotak Mahindra Investment Ltd ...Respondent
Dr Birendra Saraf, with Mr Prathamesh Kamat, Mr Kunal Vaishnav,
Mr Suraj Iyer & Ms Debashree Mandpe, i/b Ganesh & Co, for
the Petitioner.
Mr Rahul Karnik, for the Respondent.
Mr Kishore Notani, Vice President (Operations), Kotak Mahindra
Investment Ltd, present.
CORAM: G.S. PATEL, J.
DATED: 30th January 2020 PC:-
1. Mr Kishore Notani, Vice President (Operations), Kotak Mahindra Investment Ltd is present on behalf of the Respondents. The Petition challenges an Award dated 18th November 2015. I have briefl heard both sides.
2. At this stage, both sides consent to the Award in question being set aside without assigning reasons. Both sides are agreeable to the disputes being referred to arbitration afresh. Both sides also Page 1 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 ::: 926-CARBP73-18.DOC agree upon the nomination of Mr Shilpan Gaonkar, learned Advocate of this Court as the sole Arbitrator to decide the disputes and diferences between the parties arising from the Loan Agreement dated 16th June 2006 read with the Pledge Agreement dated 16th June 2006.
3. Before the previous Arbitrator the Respondents fled a Statement of Claim. The Petitioners were not permitted to fle a Statement of Defence. Thel did however fle an application under Section 16, inter alia contending that there had been no invocation bl the Respondents as required bl law under Section 21 of the Arbitration and Conciliation Act 1996. It is in view of these developments that a few further directions are necessarl.
4. As regards the Section 21 objection, Dr Saraf on behalf of the Petitioners, on instructions, waives that contention as of todal. This is noted including inter alia for the purposes of Section 4 of the Arbitration and Conciliation Act 1996. He, however, reserves the right to raise the other jurisdictional grounds including, but not limited to, the question of sufciencl of stamp paid on either or both of the agreements in question.
5. To save time, I will immediatell issue certain directions. On behalf of the Respondents, it is stated that there mal be a requirement for applling for an amendment of the Statement of Claim. Dr Saraf for the Petitioner states that as currentll advised, the Petitioner proposes to make a Counter Claim as well. These statements are noted and hence, I fi the following schedule and Page 2 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 ::: 926-CARBP73-18.DOC issue the following directions over and above the general directions that appear thereafter.
(a) The Statement of Claim alreadl fled before the previous Arbitrator will be presented to Mr Shilpan Gaonkar and this is to be done within a week of his entering upon the reference to his arbitration.
(b) Within three weeks thereafter the Respondents mal move an application for amendment, if necessarl.
(c) No amendment application is to be entertained after that period eipires.
(d) If an application for amendment is in fact moved, the Petitioner will be entitled to fle an Afdavit in Repll within two weeks thereafter.
(e) There is to be no Rejoinder.
(f ) The learned sole Arbitrator is requested to decide the
amendment application within three weeks thereafter.
(g) If there is no amendment application moved within the time provided, or within four weeks of the date of decision on the amendment application, whichever is earlier, the Respondents will fle their Statement of Defence to the Statement of Claim/amended Page 3 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 ::: 926-CARBP73-18.DOC Statement of Claim (should the amendment be permitted), along with their Counter Claim, if anl.
(h) If a Counter Claim is fled, the Statement of defence to the Counter Claim will be fled within four weeks thereafter.
(i) This schedule is not to be altered eicept if required bl the learned sole Arbitrator or in the event of an absolutell unavoidable emergencl.
(j) The learned sole Arbitrator is requested to dispose of the arbitration at the earliest.
6. The general directions regarding the appointment of the Arbitrator are as follows:
(a) Appointment of Arbitrator: Bl consent, Mr Shilpan Gaonkar, learned Advocate of this Court, is herebl nominated to act as a Sole Arbitrator to decide the disputes and diferences between the parties under the Loan Agreement dated 16th June 2006 read with the Pledge Agreement dated 16th June 2006.
(b) Communication to Arbitrator of this order:
(i) A copl of this order will be communicated to the learned Sole Arbitrator bl the Advocates Page 4 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 ::: 926-CARBP73-18.DOC for the Applicant within one week from the date this order is uploaded.
(ii) In addition, within one week of this order being uploaded, the Registrl will forward an ordinarl copl of this order to the learned Sole Arbitrator at the following postal and email addresses:
Arbitrator Mr Shilpan Gaonkar, Advocate.
Address C/o Shlam Mehta, 5A, Sindhu
House, 1st Floor, Nanabhai Lane,
Fort,
Mumbai 400 001
Mobile 9833280056
Email [email protected]
(c) Disclosure: The learned Sole Arbitrator is requested to
forward the necessarl statement of disclosure under Section 11(8) read with Section 12(1) of the Arbitration Act to the Prothonotarl and Senior Master of this Court, referencing this arbitration application, as soon as possible, and in anl case sufcientll before entering upon the reference to arbitration. That statement will be retained bl the Prothonotarl & Senior Master on the fle of this application. Copies will be given to both sides.
(d) Appearance before the Arbitrator: Parties will appear before the learned Sole Arbitrator on such date and at such place as the learned Sole Arbitrator nominates to Page 5 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 ::: 926-CARBP73-18.DOC obtain appropriate directions in regard to fiing a schedule for completing pleadings, etc.
(e) Contact/communication information of the parties:
Contact and communication particulars are to be provided bl both sides to the learned Sole Arbitrator within one week of this order being uploaded. The information is to include a valid and functional email address.
(f ) Section 16 application: The respondent is at libertl to raise all questions of jurisdiction within the meaning of section 16 of the Arbitration Act eicept as noted above. All contentions are left open.
(g) Interim Application/s:
(i) Libertl to the parties to make an interim
application or interim applications including (but not limited to) interim applications under Section 17 of the Arbitration & Conciliation Act, 1996 before the learned Sole Arbitrator.
(ii) Anl such application will be decided in such manner and within such time as the learned Sole Arbitrator deems ft.
(h) Fees: The arbitral tribunal's fees shall be governed bl the Bombal High Court (Fee Palable to Arbitrators) Rules, 2018.Page 6 of 7
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(i) Sharing of costs and fees: Parties agree that all arbitral costs and the fees of the arbitrator will be borne bl the two sides in equal shares in the frst instance.
(j) Consent to an extension if thought necessary. Parties immediatell consent to a further eitension of up to sii months to complete the arbitration should the learned Sole Arbitrator fnd it necessarl.
(k) Venue and seat of arbitration: Parties agree that the venue and seat of the arbitration will be in Mumbai.
5. All contentions, eicept as otherwise noted todal, are kept open.
6. The petition is disposed of in these terms. No costs.
(G. S. PATEL, J) Page 7 of 7 30th January 2020 ::: Uploaded on - 31/01/2020 ::: Downloaded on - 01/02/2020 00:37:01 :::