Delhi District Court
Pawan Kumar vs Kotak Mahindra Bank Ltd on 5 March, 2024
IN THE COURT OF SH. SANJAY SHARMA-II : DJ (COMMERCIAL-11)
(CENTRAL): TIS HAZARI COURTS, DELHI
OMP (Comm.) No. 167/2023
CNR No.: DLCT01-013534-2023
Pawan Kumar
S/o Sh. Raj Karan
R/o H. No. 686, Village Badli-72
Jhajjar-124 105, Haryana
..... Petitioner
VERSUS
M/s. Kotak Mahindra Bank Ltd.
Plot No. 7, Sector-125, Noida-201 303
Uttar Pradesh
Registered Office at:
27, BKC, C-27, G Block
Bandra Kurla Complex
Bandra (E), Mumbai-400 051
..... Respondent
Date of Institution : 17.10.2023
Date of Arguments : 26.02.2024
Date of Judgment : 05.03.2024
JUDGMENT
1. The petitioner filed an application under Section 34 of 'The Arbitration and Conciliation Act, 1996' (Hereinafter referred to as 'the Act') for setting aside arbitral award dated 07.02.2022 (Hereinafter referred to as 'the impugned award') in Arbitration Case No. 499 titled as 'M/s. Kotak Mahindra Bank Ltd. vs. Pawan Kumar' whereby Ld. Sole Arbitrator passed an award in the sum of Rs. 19,96,809.41/- alongwith interest @ 12% per annum w.e.f. 17.11.2020 till realization, costs of the proceedings and repossession of vehicle No. HR896236 in favour of the respondent and against the petitioner. OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 1 of 15
2. Facts leading to filing of the said application are that on 18.11.2019, the respondent advanced loan in the sum of Rs. 17,94,750/- to Mr. Raj Karan against vehicle i.e. 'Escorts JCB 3DX Excavator Loader Backhoe Loader Construction Equipment' bearing registration No. HR896236, vide Loan- cum-Guarantee Agreement. The petitioner was a 'guarantor'. The said loan amount was repayable in 47 Equal Monthly Installments (EMIs) in the sum of Rs. 50,554/- each.
3. At the time of advancement of loan, Mr. Raj Karan (borrower) had purchased an insurance policy, vide No. CD000301 dated 18.11.2019.
4. Mr. Raj Karan (borrower) expired on 19.11.2019.
5. The petitioner sent a claim in respect of the said insurance policy on 17.12.2020.
6. The respondent repudiated the claim, vide letter dated 31.03.2020, as under:
"Upon investigation and assessment of the above mentioned claim, we have received documents which prove that the Member was suffering from Left Frontal Cystic Space occupying lesion - Diagnosed for diffuse Astrocytoma Gr 3 and Seizure prior to the date of signing the DOGH. In this regard, we have relied on:-
1. The OPD issued from PGIMS Rohtak Hospital dated March 26th, 2018 procured during the assessment of the claim;
2. All the information and other documents procured during the assessment of the said claim;
It is noted that the above mentioned information was not disclosed by the Member in the DOGH and the said non-disclosure amounts to fraud as per Section 45 of the Insurance Act, 1938. Had such information been disclosed, we would not have issued the Cover. In view of the cited facts, we hereby repudiate the subject Claim."
OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 2 of 15
7. The petitioner committed default in payment of EMIs and therefore, the respondent recalled the said loan, vide demand notice dated 17.11.2020. As per statement of account, an amount of Rs. 19,96,809.40/- was due as on 17.11.2020. APPOINTMENT OF LD. SOLE ARBITRATOR:
8. The respondent appointed sole arbitrator to adjudicate disputes arising between them, vide letter dated 18.02.2021 and filed its claim before him.
ARBITRAL PROCEEDINGS:
9. On 01.03.2021, Ld. Sole Arbitrator entered into reference. He issued notice to the petitioner.
10. On 18.03.2021, the petitioner filed statement of claim alongwith documents. Ld. Sole Arbitrator again issued notice to the petitioner returnable for 05.04.2021.
11. On 05.04.2021, the petitioner appeared before sole arbitrator and he had stated that there was an issue regarding insurance and it may be resolved and matter would be settled. Ld. Sole Arbitrator adjourned the proceedings to 18.08.2021.
12. On 18.08.2021, there was no appearance on behalf of the petitioner and the proceedings were adjourned to 01.09.2021.
13. On 01.09.2021, there was no appearance on behalf of the petitioner and Ld. Sole Arbitrator proceeded ex-parte against the petitioner.
14. On 22.12.2021, Ld. Sole Arbitrator recorded ex-parte evidence of the respondent.
15. On 07.02.2022, Ld. Sole Arbitrator passed the impugned award.
OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 3 of 15 GROUNDS OF THE PETITION:
16. The petitioner impugned the arbitral award on the grounds, as under:
(a) The petitioner is a permanent resident of Jhajjar, Haryana within territorial jurisdiction of Jhajjar, Haryana;
(b) The loan agreement was executed in Rohtak, Haryana and the territorial jurisdiction was in Rohtak, Haryana;
(c) Mr. Raj Karan (borrower) had availed life insurance at the time of loan transaction and paid premium and in that regard, Certificate of Insurance was issued on 18.11.2019. Therefore, the petitioner was not liable to pay the installments after death of Mr. Raj Karan (borrower) on 19.11.2019;
(d) The respondent admitted that it had issued claim policy dated 18.11.2019 and claim intimation dated
17.02.2020, vide letter dated 31.03.2020;
(e) The respondent stated that it had repudiated the said policy, vide letter dated 31.03.2020. However, it had not refunded the amount of premium; and
(f) The respondent did not disclose the material facts to sole arbitrator and he passed the impugned award without adjudicating material facts.
APPEARANCE:
17. The Court has heard arguments of Mr. Karamjit Singh, Advocate for the petitioner and Mr. Amit Vats, Advocate for the respondent and examined the pleadings and documents. CONTENTION OF THE PETITIONER:
18. Ld. Counsel for the petitioner contended that unilateral award passed by a sole arbitrator is null and void. In that regard, he relied upon judgment of Hon'ble High Court of Delhi in Kotak Mahindra Bank Ltd. vs. Narendra Kumar Prajapat, 2023 DHC 3705 (DB). He contended that appearance of the petitioner on a single date before the sole arbitrator would not amount to waiver of his right to object ineligibility of sole arbitrator under Section 12 (5) of the Act.
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19. Ld. Counsel for the petitioner further contended that such waiver of a right can only be by an express agreement in writing.
He contended that Mr. Raj Karan (borrower) had taken insurance policy at the time of loan transaction and paid premium thereon. He contended that Mr. Raj Karan (borrower) expired on 19.11.2019 and the respondent should claim insurance from the insurer. He contended that the respondent admitted issuance of insurance policy dated 18.11.2019, vide letter dated 31.03.2020. He contended that the respondent contended that it had repudiated the policy on the ground of non-disclosure of material facts. However, the respondent has not returned the premium amount. He contended that the arbitral award was passed in breach of law and facts and it is liable to be set-aside. CONTENTION OF THE RESPONDENT:
20. Ld. Counsel for the respondent contended that the application under Section 34 of the Act is barred by time. He contended that the application for setting aside of award was filed after lapse of maximum period of 120 days from the date of service of the award. In that regard, he relied upon judgments in Consolidated Engineering Enterprises vs. Principal Secretary (Irrigation Department), 2008 (5) SCR 1108 and Union of India vs. Delhi Paper Products Co. Pvt. Ltd., OMP No. 209/2013 decided on 29.07.2013. He contended that the impugned award was passed on 07.02.2022 and Ld. Sole Arbitrator sent a signed copy thereof to the petitioner on 02.03.2022, vide speed post. He contended that the petitioner filed the said application under Section 34 of the Act on 17.10.2023. He contended that the respondent referred the dispute to sole arbitrator in terms of arbitration clause contained in the agreement.
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21. Ld. Counsel for the respondent further contended that the petitioner attended the arbitral proceedings and sought time for making payment to the respondent. He contended that the petitioner never objected to appointment of arbitrator and voluntarily participated in arbitral proceedings. He contended that the petitioner did not object to unilateral appointment of sole arbitrator. He contended that jurisdiction of the Court is limited in an application for setting aside of arbitral award and the petitioner has not furnished any reason for setting aside of the award.
REBUTTAL ARGUMENTS OF THE PETITIONER:
22. Ld. Counsel for the petitioner contended that the petitioner's mother is an illiterate person and she was in depression after death of his father. He contended that Mr. Raj Karan (borrower) was his father. He contended that in view of pandemic, there was complete lockdown. He contended that the petitioner had received notice of the execution petition filed by an another person from the Court of Mr. Ajay Tewatia, District Judge, Jhajjar, Haryana and he approached his counsel on 21.07.2023. He contended that during search, the petitioner received the arbitral award from his maternal aunt on 28.08.2023. He contended that there is delay of 460 days in filing of the said application under Section 34 of the Act. He contended that the Court may condone the delay. ANALYSIS AND DISCUSSION:
23. The respondent had advanced loan of Rs. 17,94,750/- to Mr. Raj Karan (borrower) in order to enable him to purchase 'Escorts JCB 3DX Excavator Loader Backhoe Loader Construction Equipment', vide Loan-cum-Guarantee Agreement dated 18.11.2019.
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24. The petitioner is guarantor of Mr. Raj Karan (borrower) regarding the said loan. Mr. Raj Karan (borrower) had taken Life Insurance Policy at the time of the said transaction. He had paid premium thereon. Unfortunately, Mr. Raj Karan (borrower) expired on 19.11.2019. On account of non-payment of monthly installments pertaining to the said loan amount, the respondent recalled the said loan, vide notice dated 17.11.2020. On the said date, an amount of Rs. 19,96,809.40/- was due against the said loan account.
25. Vide letter dated 18.02.2021, the respondent invoked arbitration clause and appointed a sole arbitrator for adjudication of the dispute.
26. The arbitration clause contained in Loan-cum-Guarantee Agreement is, as under:
"11.16 Unless the same falls within the jurisdiction of the Debts Recovery Tribunal established under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, any and all claims and disputes arising out of or in connection with this Agreement or its performance shall be settled by arbitration by a single Arbitrator to be appointed by the Bank. The arbitration shall be held, either in Delhi, Chennai, Kolkata, Ahmadabad, Indore, Bengaluru or Hyderabad at the sole and absolute discretion of the Bank."
27. From perusal of the arbitration clause, it is evident that it is at absolute discretion of the bank to appoint a sole arbitrator for resolution of the disputes.
28. The respondent sent notice under Section 21 of 'The Arbitration and Conciliation Act, 1996' to the petitioner whereby it invoked arbitration clause contained in Loan-cum- Guarantee Agreement and referred the dispute to sole arbitrator for adjudication, vide letter dated 18.02.2021.
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29. Section 21 of 'The Arbitration and Conciliation Act, 1996' is, as under:
"21. Commencement of arbitral proceedings Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent."
30. In Alupro Building Systems Pvt. Ltd. vs. Ozone Overseas Pvt. Ltd., 2017 SCC OnLine Del 7228, Hon'ble High Court of Delhi held, as under:
"30.....Thus, the inescapable conclusion on a proper interpretation of Section 21 of the Act is that in the absence of an agreement to the contrary, the notice under Section 21 of the Act by the claimant invoking the arbitration clause, preceding the reference of disputes to arbitration, is mandatory. In other words, without such notice, the arbitration proceedings that are commenced would be unsustainable in law."
31. It is evident that the respondent did not seek consent of the petitioner to appointment of sole arbitrator. Vide the said letter, the respondent appointed sole arbitrator and referred the dispute for adjudication. Therefore, arbitral proceedings commenced in violation of requirement of Section 21 of the Act is invalid and unsustainable.
32. The issue raised in the present case pertaining to ineligibility of sole arbitrator appointed by the respondent without written consent of the petitioner is no longer res integra.
33. In Kotak Mahindra Bank Ltd. (supra), an issue relating to enforcement of an ex-parte award passed by a sole arbitrator unilaterally appointed by the finance company without consent of the borrower reached before Hon'ble High Court of Delhi. The Executing Court was of the view that sole arbitrator was ineligible for being appointed as an arbitrator in terms of Section 12(5) of the Act.
OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 8 of 15
34. Hon'ble High Court of Delhi held, as under:
"6. The learned counsel appearing for the appellant does not seriously dispute that the arbitrator unilaterally appointed by the claimant was ineligible to be appointed as an arbitrator by virtue of Section 12(5) of the Act. He has largely focused his contentions on assailing the decision of the learned Commercial Court to award costs. It was also contended that the respondent was aware of the appointment of the arbitrator and had not raised any objection to such appointment; therefore the respondent is now precluded from challenging the impugned award.
7. We find little merit in the aforesaid contentions. The proviso to Section 12(5) of the A&C Act is unambiguous. A party can waive its right to object to the ineligibility of an arbitrator under Section 12(5) of the A&C Act but the same is subject to two conditions. First, that the waiver is required to be by and done by an express agreement in writing; and second, that such agreement is entered into after the disputes have arisen. Unless both the aforesaid conditions are satisfied, there can be no waiver of the ineligibility of an arbitrator.
10. The award rendered by an arbitrator who is ineligible to be appointed as such cannot be enforced.
12. In Govind Singh v. Satya Group Pvt. Ltd. :
2023/DHC/000081 this court held as under: "In view of the above, the remaining question to be addressed is whether an arbitral award rendered by a person who is ineligible to act as an arbitrator is valid or binding on the parties. Clearly, the answer must be in the negative. The arbitral award rendered by a person who is ineligible to act as an arbitrator cannot be considered as an arbitral award. The ineligibility of the arbitrator goes to the root of his jurisdiction. Plainly an arbitral award rendered by the arbitral tribunal which lacks the inherent jurisdiction cannot be considered as valid. In the aforesaid view, the impugned award is liable to be set aside as being wholly without jurisdiction.
14. This Court finds no infirmity with the aforesaid view. A person who is ineligible to act an Arbitrator, lacks the inherent jurisdiction to render an Arbitral Award under the A&C Act. It is trite law that a decision, by any authority, which lacks inherent jurisdiction to make such a decision, cannot be considered as valid. Thus, clearly, such an impugned award cannot be enforced."
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35. It is relevant to note that Special Leave Petition (Civil) Diary No(s). 47322/2023 against the judgment in Kotak Mahindra Bank Ltd. vs. Narendra Kumar Prajapat was dismissed on 17.05.2023. The relevant part of the judgment of Hon'ble Supreme Court of India is, as under:
"From paragraph 6 of the impugned order, it appears to be an admitted position that the Arbitrator unilaterally appointed by the petitioner was ineligible to be appointed as an arbitrator by virtue of Section 12(5) of the Arbitration and Conciliation Act, 1996."
36. In Smaaash Leisure Ltd. vs. Ambience Commercial Developers Pvt. Ltd., 2023 SCC OnLine Del 8322, Hon'ble High Court of Delhi held, as under:
"21. The primordial question that falls for consideration before this Court is whether the impugned Awards are liable to be set aside on the ground that the learned Arbitrator was appointed unilaterally by the Respondents and was thus ineligible by virtue of Section 12 of the 1996 Act as well as the law laid down by the Supreme Court, to conduct the arbitral proceedings and render the impugned Awards.
22. Arbitration is an alternate dispute resolution mechanism chosen by the parties to a contract incorporating the Arbitration Agreement, wherein a third party is chosen and appointed to resolve the disputes and which is why Arbitrators are commonly referred to as creatures of a contract. The ethos and first principle on which the arbitration mechanism functions is party autonomy i.e. freedom to choose an Arbitrator acceptable to both parties to the agreement, embedded in the principle of natural justice that 'no man can be a judge of his own cause' i.e. 'Nemo judex in causa sua'.
23. In its landmark judgment in Perkins (supra), the Supreme Court crystallized the position in law that unilateral appointment of the Arbitrator will be vitiated under Section 12(5) of the 1996 Act as it hits the principle of autonomy.....
38. This gets me to the next plank of argument of the Respondents that challenge to the impugned Awards should not be entertained in a petition under Section 34 of the 1996 Act, on the ground of alleged ineligibility attached to the appointment of the sole Arbitrator.
OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 10 of 15 It is no longer res integra that an arbitral award rendered by an Arbitrator, who is ineligible to act as an Arbitrator cannot be termed as an arbitral award and thus not binding on the parties.....
39. From the aforesaid judgment, it is clear that the ineligibility of the Arbitrator goes to the root of the jurisdiction and vitiates the award. Such is the threshold of this disability that in a recent judgment in Kotak Mahindra Bank Ltd. (supra), the Division Bench of this Court had interfered at the stage of execution of the arbitral award and upheld the order of the learned Commercial Court, holding that an award rendered by a person who is ineligible to act as an Arbitrator by virtue of Section 12(5) is a nullity and cannot be enforced. In view of these judgments, in my considered view, the impugned awards cannot be sustained in law, solely on the ground of ineligibility of the learned Arbitrator and are accordingly set aside."
37. In Babu Lal and Another vs. Cholamandalam Investment and Finance Company Ltd. and Another, 2023 SCC OnLine Del 7239, Hon'ble High Court of Delhi held, as under:
"8. It is an admitted position that the respondent Company nominated a Sole Arbitrator on its own without recourse to Court. Supreme Court in Perkins Eastman Architects DPC. (supra) has held that there cannot be a unilateral appointment or nomination of an Arbitrator by a party interested in the dispute. Reference has to be to an independent person.
9. In the instant case, admittedly, nomination of the Sole Arbitrator was done by the respondents on their own without any concurrence from the appellant. Letter dated 18.10.2021 is merely an intimation to the appellant of nomination of the Sole Arbitrator. Said nomination was without reference to the Court in terms of Section 11 of the Arbitration & Conciliation Act, 1996.
10. Clearly, an award rendered by an ineligible Arbitrator would be a nullity as has been held by a Coordinate Bench of this Court in Kotak Mahindra Bank Ltd. v. Narendra Kumar Prajapat, 2023 SCC OnLine Del 3148.
11. In the instant case since the appointment of an Arbitral Tribunal was unilateral and without recourse to Court, the Award rendered by the Arbitral Tribunal would also be a nullity. The Trial Court has clearly erred in not appreciating that the appointment was unilateral and consequently, the Award was a nullity."
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38. In the present case, the respondent had not given any notice for reference of the dispute to sole arbitrator. The respondent unilaterally appointed sole arbitrator to adjudicate the issues. The petitioner never consented in writing to refer the dispute to sole arbitrator. Sole Arbitrator was ineligible to act as arbitrator. The arbitral award passed by sole arbitrator cannot be considered as an arbitral award. Such unilateral appointment of a sole arbitrator without consent of the petitioner affects 'party autonomy' and 'freedom of the parties'. Any objection to appointment of a sole arbitrator goes to the root of the jurisdiction of such arbitrator. An arbitration award passed by an ineligible arbitrator is without jurisdiction and non-est. The impugned award is liable to be set-aside as being wholly without jurisdiction.
39. As regards contention that the petitioner had appeared before Ld. Sole Arbitrator and thereby, he participated in arbitration proceedings and he did not object to appointment of arbitrator and continuance of arbitral proceedings and as such, the petitioner waived his right to appointment of sole arbitrator, it would be appropriate to refer the proceedings dated 05.04.2021, as under:
"05.04.21 Present: Sh. Amit Kumar Vats, Advocate for Kotak Mahindra Bank Ltd.
Present: Pawan Kumar, Guarantor / Son of deceased. Pawan Kumar submits that there is some issue with insurance and it may be resolved soon and matter will be settled.
The matter is adjourned for settlement on 18.08.2021. Now to come up on 18.08.21 till 4 P.M."
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40. Mere appearance of the petitioner and recordal of his submissions that there was an issue with insurance and it may be resolved soon would not amount to waiver.
41. In Smaaash Leisure Ltd. (supra), Hon'ble High Court of Delhi held, as under:
"32. Coming to the argument of the Respondents that Petitioner's participation in the arbitral proceedings constituted waiver by conduct, suffice would it be to state that this issue is no longer res integra. The Supreme Court in the case of Bharat Broadband Network Limited (supra), has held that waiver under Section 12(5) of the 1996 Act would be valid only if it is by an 'express agreement in writing'.....
34. The aforesaid view was reiterated by this Court in the case of Score Information Technologies Limited (supra), Larsen and Toubro Limited (supra), A.K. Builders (supra) and Saroj Pandey v. Aaryavrat Products India Pvt. Ltd., 2023 SCC OnLine Del 6629. Recently, a Division Bench of this Court in Govind Singh (supra) has held that once the Arbitrator becomes disabled and ineligible to act under Section 12(5) of the Act, 1996, it is not even necessary to examine the question whether the party in disagreement with the appointment had raised an objection to the appointment and even if it is assumed that the said party had participated in the arbitral proceedings, without raising any objection to the appointment, it is not open to hold that it had waived its rights under Section 12(5)....."
42. In Umaxe Projects Private Limited vs. Air Force Naval Housing Board, 2023 SCC OnLine Del 7684, Hon'ble High Court of Delhi held, as under:
"12.....An overt act on the part of the party expressly conceding to the jurisdiction of the arbitrator after becoming aware of the ineligibility may amount to waiver of the kind conceived in Section 12(5). Simple act of participation, without any indication that the party is aware of the ineligibility and has consciously chosen to waive off the right to object, will not be sufficient."
43. Mere appearance of the petitioner without having knowledge ineligibility of sole arbitrator and conscious waiver of right to object ineligibility is inconsequential.
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44. As regards contention regarding delay in filing of application under Section 34 of the Act, it can be stated that there must be an award passed by a legally constituted arbitral tribunal to invoke the plea of limitation. An arbitration award passed by an unilaterally appointed arbitrator without written consent of the respondent is without jurisdiction and nullity. Such an award is not a legal award in the eyes of law and it is no enforceable. Therefore, issue of limitation, as envisaged under Section 34 (3) of the Act does not arise. Arbitration award passed in breach of mandate of law would not become legal for want of challenge within stipulated period. Dismissal of application under Section 34 of the Act on account of challenge to such an award within stipulated period would amount to making an award passed in breach of law enforceable. Any other interpretation would validate such an award in breach of mandate of law.
CONCLUSION:
45. Therefore, the application under Section 34 of 'The Arbitration and Conciliation Act, 1996' is allowed. Consequently, the impugned award dated 07.02.2022 in Arbitration Case No. 499 titled as 'M/s. Kotak Mahindra Bank Ltd. vs. Pawan Kumar' is set-aside. In the facts and circumstances of the case, there is no order as to costs. File be consigned to record room. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2024.03.06 13:08:49 +0530 Announced in the open Court SANJAY SHARMA-II on this 05th March, 2024 DJ (Commercial-11) (Central) Tis Hazari Courts, Delhi OMP (Comm.) No. 167/2023 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. Page No. 14 of 15 Pawan Kumar vs. M/s. Kotak Mahindra Bank Ltd. CNR No.: DLCT01-013534-2023 OMP (Comm.) No. 167/2023 05.03.2024 Present : Mr. Karamjit Singh, Advocate for the petitioner.
Mr. Amit Vats, Advocate for the respondent.
Vide separate judgment, the application under Section 34 of 'The Arbitration and Conciliation Act, 1996' is allowed. Consequently, the impugned award dated 07.02.2022 in Arbitration Case No. 499 titled as 'M/s. Kotak Mahindra Bank Ltd. vs. Pawan Kumar' is set-aside. In the facts and circumstances of the case, there is no order as to costs. File be Digitally signed consigned to record room. by SANJAY SHARMA SANJAY Date:
SHARMA 2024.03.06
13:09:00
+0530
Sanjay Sharma-II
DJ (Commercial-11)
Central, THC, Delhi
05.03.2024
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