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https://www.mhc.tn.gov.in/judis  O.S.A.Nos.288 and 289 of 2020

21. We have heard Mr.T.K.Bhaskar, learned counsel appearing for the appellant and Mr.G.Vivekanand, learned counsel appearing for the 1st respondent. The respondents 2 to 5, who are the Arbitrators have been given up.

22. Mr.T.K.Bhaskar, learned counsel appearing for the appellant would vehemently contend that all the forums viz., the sole Arbitrator, the appellate Tribunal and the Hon'ble Single Judge sitting under Section 34 had faulted the appellant for having sold the pledged shares without sufficient notice, which according to them is in violation of Section 176 of the Indian Contract Act, 1872.

26. Contending contra Mr.G.Vivekanand, learned counsel appearing for the respondent would submit that notice dated 16.02.2012 cannot be taken as a notice under Section 176 of the Contract Act. The learned counsel would submit that it is only the notice of demand and not a notice disclosing the intention to sell the pledged shares. According to the learned counsel, in order to constitute a valid notice under Section 176, the pledgor should convey unequivocal intention to sell the pledged goods in the even of failure to pay by a certain date. Contending that the notice dated 16.02.2012 is a general demand notice, which also includes a indication that the pledged goods will be sold, if the money is not paid, which according to him, would not satisfy the requirement of the Section 176 of the Contract Act.

27. On the liability to pay the monies that were due by the Boothathan, Mr.G.Vivekanand, learned counsel would contend that having https://www.mhc.tn.gov.in/judis  O.S.A.Nos.288 and 289 of 2020 obtained the award against Boothathan it was the right of the appellant to have executed the said award against Boothathan or transfer the said award in favour of the respondent and required the respondent to execute the award. Having done neither the appellant, according to the learned counsel, is not entitled to adjust the monies due from Boothathan from the monies due to the respondent.

37. Contending contra Mr.G.Vivekanand, learned counsel appearing for the respondent would contend that the language of the Section 34 of the Arbitration and Conciliation Act,1996 enables the Court to set aside an award if it is in conflict with the public policy of India or it is vitiated by patent illegality under sub-Section 2-A after 23.10.2015. Contending that if the Court comes to a conclusion that the award is opposed to public policy of India, irrespective of the fact that the applicant has partially succeeded before the Arbitrators, the Section 34 Court can set aside the entire award and relegate the parties to fresh arbitration if they are so advised.