Bombay High Court
Royal Palms (India) Pvt. Ltd vs Neeta Jegnesh Parikh on 12 July, 2016
Bench: Anoop V. Mohta
Rng 1
newapp.272.1104.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.272 OF 2016
in
ARBITRATION PETITION NO.1104 OF 2012
Royal Palms (India) Private Limited }
A Company incorporated under the
Companies Act, 1956 having its }
Registered Office at Survey No.169,
C.T.C.No.1627, Aarey Milk Colony,
Goregaon (East) Mumbai - 400 065 .. } Appellant
(Orig.Petitioner)
vs
Neeta Jignesh Parikh ig }
Carrying on business under the name
and style of M/s Prashin Sales Agency
a sole proprietary firm with office }
at A-303 Kandivali (West)
Mumbai-400 056. } .. Respondent
(Orig.Respondent)
Mr.Mustafa Doctor Sr.Advocate, Mr.Rohan (Claimant)
Pinto, Mr.Nimay Dave I/b M/s Mulla & Mulla
Craigie Blunt & Caroe for Appellant.
Mr.Vishwajeet Sawant, Ms.Rutuja Joshi,
Mr.Siddharth Kanade I/b ALMT Legal
for Respondent
CORAM : ANOOP V. MOHTA &
G.S.KULKARNI, JJ.
DATE: 12TH JULY, 2016.
ORAL JUDGMENT (Per Anoop V.Mohta, J)
Admit. By consent of learned counsel for parties,
heard for final disposal at the stage of admission.
newapp.272.1104.12
1. The appellant-original petitioner has filed this
appeal being aggrieved by Judgment and order dated 6 May
2016 passed by the learned Single Judge whereby the
appellants' petition challenging the award has been dismissed.
That resulted into maintaining the Award passed by the learned
Arbitrator.
2. The dates and sequence of events are as under :
From November 2006 to October 2008 the
respondents supplied various kinds of materials such as pipes
(RCC Hume pipes, PVT/GL/M.S.pipes) pipe fittings (elbows,
tees,bends, barrel, nipples, rubber gaskets)flanges, valves and
couplings of various types and sizes to the appellants in respect
of a development that the appellants were undertaking at village
Marol Maroshi, Borivali, Mumbai. The appellant placed
purchased orders on the respondent after the confirmation of
the quotations. It is undisputed that during this period the
appellant paid the respondent an amount of Rs.1,44,04,592.50
(Rupees One crore Forty Four lakhs Four thousand five hundred
newapp.272.1104.12
and ninety two and fifty paise only) towards goods purchased.
The respondent claimed an amount Rs.61,36,187/- in respect of
Bill Nos.1233, 1266, 1271, 1278, 1285, 1294,1298 and 901
(Exhibit C-8,C-11, C-13 to C-18 respectively). On 20 June 2009
a notice was issued by the respondents to the appellant under
section 433 and 434 of the Companies Act, 1956 claiming the
outstanding amount along with the interest. On 7 July 2009,
the appellant resisted the notice. The appellant denied that any
amounts were due or payable to the respondent and stated that
no such materials/goods under the bills were ever received by
the appellant. The appellant also stated that the respondent's
claim was false and fabricated and in connivance with an
employee of the appellant. On 20 July 2009, the respondent
denied it.
3. In September 2009 the respondent filed a Company
Petition in this Court being Company Petition No.802 of 2009
for winding up the appellant company in view of the alleged
outstanding amount. On 2 August 2010 by an order passed in
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the Company Petition, by consent of parties, the disputes and
differences between the parties were referred to an arbitration.
4. On 4 January 2011 the respondent filed their
statement of claim before the Arbitrator for the sum of
Rs.61,36,187/- alongwith interest calculated thereon at the rate
of 30% per annum aggregating to Rs.1,04,89,584/-with further
interest thereon @ 18% per annum. The respondent described
the unpaid bills as Exhibits C-8, C-11, C-13 to C-18 and filed the
same in a separate compilation of documents accompanying the
Statement of claim. On 23rd February 2011, the appellant
resisted and denied the claim of the respondent and filed their
statement of defence contending that the orders for the goods
under the alleged unpaid bill had never been placed by the
appellant and never received the goods from the respondent.
The entire claim was set up on the basis of forged and fabricated
documents. The appellants also averred that criminal
proceedings have been initiated against the respondent in this
regard. On 2nd March 2011, the respondent filed her response
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to the appellant's written statement. On the basis of the
pleadings filed before the learned Arbitrator the learned
Arbitrator framed the points for determination. The relevant
Issue (vii) is reproduced herein below:
"vii. Whether the respondent failed to pay
Rs.61,36,187/- for materials duly supplied by
the claimant under unpaid Bills 1 to 8 (at Exh
C-8 colly) C-11 (colly, C-13 colly to C-18 colly)
and the claimant is entitled to payment."
5. The learned Arbitrator has passed the reasoned
Award directing the appellant to pay to the respondent an
amount of Rs.61,36,187/- along with interest @ 12% per
annum from the date of the delivery of the goods/materials till
the date of the award and 10% per annum from the date of the
award till payment. The learned Arbitrator has also imposed
costs of Rs.3,00,000/-on the appellants. The aggregate amount
of the invoices Exh C-11 colly to C-18 colly is Rs.35,78,454/-. It
is not in dispute. But that was not the only documents relied
newapp.272.1104.12
upon by the respondent-claimant.
6. The appellants filed Arbitration Petition No.1104
of 2012 before this Court to impugn the Arbitrator's award. On
30 October 2012 the respondent filed her Affidavit in reply to
the Arbitration Petition. On 6 th May 2015 Arbitration Petition
was dismissed by the Court. The learned senior counsel
appearing for the appellant mainly contended that the
documents though exhibited and marked were wrongly relied
upon for passing the Award. Therefore, the amount awarded
for Rs.61,36,187/- on that basis is beyond the claim made by
the respondent-original-Claimant. It is unacceptable submission.
7. Admittedly, no such ground/plea was raised
before the learned Single Judge. No such ground is even raised
before this Court in the appeal memo. No contra evidence was
lead before the Arbitrator. After considering the rival
contentions we noted that the unpaid bills documents through
(Exhibit C-8 colly,C-11 to C-18) have been duly exhibited after
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hearing the parties. These exhibits include the purchase order,
invoices and the respondent's ledger account, statement of
account and the various correspondences. The statutory notices
apart from the Affidavit-in-reply including criminal complaints
filed by the respondent against the claimants before police are
also part of the Exhibits.
8.
It is not the case that there is no supportive
evidence on record of the respondent-claimant. The reasoned
Award is based upon it. The learned Arbitrator though has
granted an opportunity at the relevant time, yet no
witness/witnesses were examined by the appellant in defence.
There is no dispute that the burden lies on the person one who
makes specific allegations and/or averments. It should be
supported by material particulars. The claimant has discharged
its burden. No relevant witness was examined revolving around
the allegation of forgery and fabrication. The adverse inference
is therefore, rightly drawn against the appellant.
9. It is a settled law that the learned Arbitrator
newapp.272.1104.12
need to proceed with the matter based upon the evidence led
and placed in support of the rival contentions. As noted above,
the learned Arbitrator in the present matter, in the background
and by referring the documents (Exhibits) has assessed the
evidence, material and has passed the reasoned award.
Therefore, the specific submission though raised and though not
agitated before the learned Single Judge and for the reasons so
recorded by the learned Arbitrator, as well as, by the learned
Single Judge, we are not inclined to interfere with the Award
and the judgment.
10. Furthermore, it is not a case of transaction of a
short period. The transactions were long standing. The claims
revolving around the invoices and purchase orders and related
documents, which have been duly exhibited after hearing both
the parties. The existence of documents as exhibited by the
Arbitrator is not in dispute.
11. Admittedly, the appellant could have examined
the best person in support of its defence submissions. In the case
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through the examination-in-chief or in cross-examination even
the allegations of forgery and/or no signature of father could
have been proved or disproved, before the Arbitral Tribunal.
The record though asked for by the respondent-Claimant, was
also not produced by the appellant on the ground that those
documents/record were destroyed in fire. We are thus not
inclined to re-appreciate the reasons and/or the exhibited
documents on record that resulted into passing of the Award
and the Judgment.
12. This Court, on 5 July 2016 in Appeal (Lodging)
No.201 of 2016 in Arbitration Petition No.898 of 2015
Jawaharlal Nehru Port Trust vs Ornate Multi Model Carriers
Pvt.Ltd held that non traverse of the facts clearly makes
applicable the doctrine of implied admission as would flow from
Section 58 of the Evidence Act. Further, it is also not a case that
the appellant has placed on record any evidence to the contrary.
Thus it is a case where the principles as contained in Section 58
of the Indian Evidence Act would get clearly attracted being one
of the basic rules of evidence.
newapp.272.1104.12
13. Both the learned counsel even referred to the
reasons given by the learned Single Judge. We have gone
through the same. On hearing both the parties, we have also
noted that the learned Single Judge has rightly observed and
recorded that this is not a case where the Court under section
34 of the Act is required to re-appreciate the evidence and/or
interfere with such findings on facts. We have also noted that
there is no perversity and/or illegality that we should interfere
with the Award or the Judgment passed by learned Single Judge
confirming the same by referring to the positions of law and the
Judgments cited by the rival parties. We are also in agreement
with regard to the issues so decided and the reasons given by
the learned Single Judge distinguishing other Judgments of the
appellant. There is no perversity or any illegality. The findings
are within the frame of law and the record.
14. Therefore, taking an over all view of the matter,
and the Judgment of this Court dated 14 March 2016 in Appeal
(Lodging) No.31 of 2016 Coram: Anoop V.Mohta & S.C.Gupte,
JJ) in Indian Oil Corporation Ltd vs Artson Engineering Ltd
newapp.272.1104.12
whereby it is recorded the power and scope of Appellate Bench
while deciding the Appeal under section 37 of the Arbitration
Act.
"17. The Apex Court in thie case of M/s Chebrolu Enterprises vs
Andhra Pradesh Backward Class Co-operative Finance Corporation Ltd
reported in 2015 (2) Scale 207, recently reiterated and reinforced that
the principle that unless case of perversity and/or error on the face of
the record and/or any issue of jurisdiction is raised which goes to the
root of the matter and/or any Award and/or order is contrary to the
agreed terms and conditions, no interference is called for by the
learned Judge as well as the Appellate Court in the finding of facts. In
para 20 of the judgment, the Apex Court has observed thus:
20. ... This Court or even the Appellate Court would not look into the
findings of facts unless they are perverse."
15. That considering the power and scope of the
Appellate Court, no case made to accept the appellant's appeal.
16. Appeal is dismissed. No costs.
{G.S.Kulkarni, J} {Anoop V.Mohta, J}
newapp.272.1104.12
