Calcutta High Court
Maphijul Mallik vs Magma Fincorp Ltd on 20 November, 2019
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
OD-12
AP 206 of 2019
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
MAPHIJUL MALLIK
Versus
MAGMA FINCORP LTD.
BEFORE:
The Hon'ble JUSTICE ASHIS KUMAR CHAKRABORTY
Date : 20th November, 2019.
Appearance:
Mr. Subhojit Seal, Adv.
Mr. Samit Bhanja, Adv.
Mr. Swatarup Banerjee, Adv.
Mr. K.K. Pandey, Adv.
Mr. S. Bose, Adv.
The Court : In this application under Section 34 of the
Arbitration & Conciliation Act, 1996, as amended by Act 3 of 2015
(in short, "the Act of 1996") the petitioner, being the respondent
in the arbitral proceeding has challenged the award made and published by the Arbitrator, namely, Ganesh Manna on January 24, 2019.
The ground urged for setting aside of the purported award made by the Arbitrator is non-service of notice of the sittings of arbitral proceeding upon the petitioner.
Accordingly, on November 19, 2019 this Court directed the Arbitrator to produce all the records of the arbitral proceeding before this Court. The Arbitrator through his advocate, namely, 2 Sariful Haque has produced complete records of the arbitral proceeding before this Court.
After perusing the records of the arbitral proceeding as forwarded by the Arbitrator it appears that all the minutes of the arbitral proceeding were forwarded to the petitioner but he refused to accept some of the said minutes. In the minutes of the meeting held on January 9, 2019 the arbitrator has recorded that the authorised signatory of the claimant adduced oral evidence and proved the agreement as well as the claim of the claimant. However, the records of the arbitral proceeding do not disclose any document to substantiate that any oral evidence was adduced on behalf of the claimant to prove its claim. Such fact could not be disputed by learned Counsel appearing for the claimant/respondent. Considering the records of the arbitral proceeding as produced by the arbitrator it is proved that none adduced any oral evidence on behalf of the claimant and the claimant's claim was not proved.
The impugned award made by the Arbitrator is so unfair and unreasonable that it shocks the conscience of this Court. Accordingly, in view of the ratio of Supreme Court in the case of Associate Builders -vs- Delhi Development Authority reported in (2015) 3 SCC 49 the impugned award is set aside, with costs assessed at Rs.10,000/-(Rupees Ten Thousand only) to be paid by the Arbitrator to the High Court Legal Services Authority within December 3, 2019.
3
Since, the impugned award is set aside on the basis of the records of the arbitral proceeding as produced by the Arbitrator the respondent was not called upon to file an affidavit and as such the allegations made against them, if any, in the application shall be deemed not to have been admitted. The respondent shall be entitled to proceed with the fresh arbitral proceeding against the present petitioner by appointing a new Arbitrator upon notice to the petitioner.
The respondent will be entitled to take back the original document(s), if any forming part of the records of the arbitral proceeding, after furnishing copies thereof. The respondent shall communicate this order to the Arbitrator.
Let, the application appear, under the heading "To Be Mentioned", for ascertaining if the Arbitrator has complied with the above direction for payment of costs.
(ASHIS KUMAR CHAKRABORTY, J.) s.pal/mg