Delhi District Court
M/S Exl Service.Com (I) Pvt. Ltd vs Rohit Peter on 28 March, 2012
IN THE COURT OF SHRI VIMAL KUMAR YADAV:
ADDL. DISTRICT JUDGEII (NORTH): DELHI
CS No. 77/11
M/s EXL Service.com (I) Pvt. Ltd. ... Petitioner/ nonobjector
Versus
Rohit Peter ... Respondent/ objector
JUDGMENT
The objection petition filed under Section 34 of the Arbitration & Conciliation Act, 1996 (hereinafter to be referred as the Act) is hereby disposed off through this judgment.
2. Before adverting into the details and grounds set up by the respondent/ objector, the indispensable facts, against the backdrop of which, the present proceedings has emerged, are required to be looked into. The objector joined the services of the petitioner/ nonobjector company in the month of September, 2005 and as alleged by the respondent/ objector, he was forced to sign certain documents as his position was vulnerable. Therefore, placed under such circumstances, where he had to take the job, he signed those papers on the dotted lines. It appears that after sometimes, the objector/respondent left the job which was contrary to the understanding/ agreement between the parties. The respondent/ objector was to work for a minimum period of about 18 months with the petitioner/ nonobjector company. Thus, the arbitration clause was invoked by the petitioner/ non objector company and the matter was referred to the arbitrator. The CS No. 77/11 1 proceedings before the arbitrator resulted into the award dated 27.3.2010, which is the subject matter of these proceedings.
3. The petitioner/ non objector has challenged the award on the following grounds that there is no binding arbitration agreement between the petitioner/ nonobjector and the respondent/ objector as the respondent/ objector was compelled to sign on certain documents against his wishes and that no notice of arbitration proceedings was ever served to him and the same is the position with respect to the impugned award dated 27.3.2010. It is further alleged that the award in question is a nonspeaking award and therefore, the same being against the public policy, is required to be set aside.
4. Petitioner/ Nonobjector while contesting the petition submitted at the outset that the proceedings under Section 34 of the Act, as invoked by the respondent/objector, is time barred and the award is in consonance with the facts and circumstances coupled with the applicable law, therefore, does not requires any interference. It is further elaborated by the petitioner/ non objector that the objector/ respondent was under an obligation to serve the petitioner company for a minimum period, which he did not and sent his postal resignation compelling the petitioner/ nonobjector to invoke the arbitration clause, which is very much there. The communications were distracted to the respondent/ objector at the address furnished by him and incidentally, that very address is still the address of respondent/ objector, therefore, the plea that the objector was not served with the notice, was not provided with the copy of the award, are all false. Verily, it was the objector/ CS No. 77/11 2 respondent, who illegally and unauthorizedly absented himself, contrary to the minimum service period of 18 months, left the job earlier, therefore, rendered the respondent/ objector and his father liable in terms of the agreement, jointly and severely. It is further submitted that the respondent/ objector had voluntarily entered into the service agreement and in fact his sudden departure caused complications in functioning of the petitioner/ nonobjector company that too in violation of the service agreement. The service agreement whereas was signed by the respondent/objector of his own volition, without any force, threat or coercion as is evident from the fact that nowhere any complaint was ever lodged by the respondent/ objector with regard to this fact.
5. I have considered the contention raised by the ld. Counsels for the parties and have perused the record as well. The counsel for the objector has relied upon the authority Union of India Vs. Tecco Trichy Engineers & Contractors (2005) 4 SCC 239 and M/s G. Premjee Trading Pvt. Ltd. Vs. M/s Ashoka Alloys Limited AIR 1999 Delhi 83 in order to buttress his arguments. The latter judgment is not attracted to the facts of the case as no prejudice has been shown to have been caused to the objector nor any other plea of bias etc. against the arbitrator is there. More so, the guidelines/ procedure is also prescribed in Clause 15 of the Service Agreement, which apparently has been complied with. Then again it was the objector himself who had avoided the process, otherwise he could have insisted about the procedures etc. On the other hand, counsel for the respondent has relied upon the following CS No. 77/11 3 authorities, Bhairab Karmakar and construction company Vs. Sarbari Biswas 2009 (4) RAJ 369 (Cal), New Globe Transport Corporation Vs. Magma Sharchi Finance Ltd. 2011(4 RAJ 176 (Cal), M/s Shiv Shakti Rice Mills Vs. Punjab State Warehousing Corporation & others 2005(4) RAJ 454 (P&H), Balkrishna Ramkaran Goyal Vs. Union of India 2005(4) RAJ 457 (Del), Union of India Vs. Andhra Pradesh State Cooperative Marketing Federation Ltd. 2004(2) RAJ 295 (Del), Reena Sadh Vs. Anjana Enterprises 2007 (138) DLT 582, Brick Steel Enterprises Vs. The Superintending Engineer, PWD 2006 (5) CTC 519, and SRS Entertainment Ltd. Vs. Home Stores (India) Ltd. to strengthen his case.
6. It is settled proposition of law that the courts do not sit in appeal in respect of the award passed by the Arbitrator. The role of the court is to the limited extent to ascertain as to whether the proper procedure has been followed or not, to come to the conclusion arrived at by the Arbitrator which are plausible and possible in the set of facts and circumstances. Reference can be made to the UOI Vs. PAN Development Pvt. Ltd. AIR 2004 NOC (Kolcutta) and National Highway Authority of India Vs. ITD Cementation India Ltd. reported in 2008 (100) DRJ 431 (DB).
7. The contention of the objector seems to be unfounded that no notice was served upon the objector for the simple reason that address used by the petitioner company, or the sole arbitrator is the same, which has been furnished by the objector in the instant proceedings. Incidentally, that very CS No. 77/11 4 address, was there mentioned by the objector/ respondent and his father in the service agreement, copy of which has been placed on record of the abitrator. The record of the arbitrator further reveals that the communication sent at the correct address and the endorsement on the postal communication further reveals that process was deliberately dodged by the respondent/ objector and his father. In one of the comunications, which seems to contain the copy of the award, it has been endorsed by the postal authority that Mr. Ericson Peter i.e. father of the respondent no.1 Rohit Peter had informed that Rohit Peter is not residing at the address furnished whereas with regard to the communication addressed to him, Mr. Emerson Peter has refused it. This is ample proof of deliberate avoidance of the legal process. In such circumstance, there was nothing much which the arbitrator could have done. As such, in such circumstaces, the judgment relied upon by the objector in UOI Vs. Tecco Trichy Engineers (Supra) is not applicable as it has been emphasised by the counsel that the award should be 'delivered' to the addressee. In this context reference can be made to the judgment in SRS Case (Supra) and Bhairab Karmakar and Constructions Company Vs. Sarbari Biswas 2009(4) RAJ 369 (Cal).
8. The petition has been filed by Rohit Peter using that very address futher substantiate this fact that the attempt was deliberate on the part of the objector to avoid the process, therefore, in these circumstances, he cannot be permitted to take advantage of their collective wrongs. More so, in view of Section 3 of the Act, the petitioner otherwise have no case and it can be CS No. 77/11 5 concluded that communications were addressed to the objector at the correct addess which was deliberately refused/ avoided and as such, it is deemed service and the objector/ respondent cannot take advantage of this fact.
8. The other contention raised on behalf of the objector/ respondent is that there is no arbitration agreement between the parties whereas the service agreement which has been signed by both the sides including objector/ respondent herein in presence of the three witnesses contains Clause 15, which is nothing but an arbitration agreement and that is how the contention of absence arbitration agreement stands destroyed.
9. It seems that the objector is referring to signing the agreement as the documents which were got signed by the petitioner company. It is service agreement and there appears no space where any kind of manipulation is possible since it is printed document. Therefore, in these circumstances, the contention raised on behalf of the objector seems to be bald argument without any force for the additional reason that the objector has never ever bothered to lodge any complaint or to even mention, refer etc. to anybody that he was compelled to sign any document. Had that be the case, he could have walked out then and there. It is not plausible that he was placed in such a situation where he could not have referred to sign the agreement. It is unimaginable, and not even pleaded that he was made to sign on gunpoint. And in case it was such circumstances from where he could not extricate him, he could have on the very next day communicated the petitioner company with regard to these facts or could have reported the matter to the appropriate authority and CS No. 77/11 6 for that matter he could resigned through postal means as has been done by him saying all these things. It is, incidentally, not the case of the objector even while resigning later, no such plea has been raised. Thus, it seems to be an after thought and a plank floated by the objector to scrape through the stromy waters. The absence of any such act on behalf of the objector left to him with no substantial defence on this count, thus, no weight can be given to that contentions and same are brushed aside.
9. The respondent has contended that the petition is time barred, which in the circumstances, appears to be correct. The facts such as the deliberate refusal or avoidance on behalf of the objector would not enlarge the period of limiation and even if we take into the consideration enlargement of the period, as per Section 34(3) of the Act, still the petition is time barred. It is apparent on the record that copy of the award was transmitted at the correct address by the arbitrator and it was the objector who shied away and did not come upto the expecations, therefore, the advantage cannot be permitted to be taken by the respondent/ objector. As such, the objections/ petition being bereft of any substance is bound to be declined. Ordered accordingly. File be consigned to record room.
Announced in open court (VIMAL KUMAR YADAV)
on 28.03.2012 Addl. District JudgeII (North)
Delhi
CS No. 77/11 7
CS No.77/11
28.03.2012
Present : None.
Vide separate judgment dictated and announced, the
objections/petition being bereft of any substance is bound to be declined. Ordered accordingly. File be consigned to record room.
(V.K. Yadav) ADJII (North) Delhi.
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