Reid And Taylor (I) Limited And 2 ... vs L And T Finance Limited
2016 Latest Caselaw 993 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                          
                   ARBITRATION PETITION NO.1641 OF 2015




                                                  
    1. Reid & Taylor (I) Limited              )
       A Company incorporated under the       )
       Companies Act, 1956 having its         )




                                                 
       registered office at B2, 5th Floor,    )
       Marathon Next Gen, Off G.K. Marg,      )
       Lower Parel, Mumbai - 400 013.         )




                                            
    2. S.Kumars Nationwide Ltd.               )
       A Company incorporated under the       )
                                   
       Companies Act, 1956 having its
       registered office at B2, 5th Floor,
                                              )
                                              )
       Marathon Next Gen, Off G.K. Marg,      )
                                  
       Lower Parel, Mumbai - 400 013.         )

    3. Nitin S.Kasliwal                       )
       having his address at B2, 5th Floor,   )
       Marathon Next Gen, Off G.K. Marg,      )
        


       Lower Parel, Mumbai - 400 013.         )    ..       Petitioners
     



           Vs.

    L & T Finance Limited                        )





    A Company incorporated under the             )
    Companies Act, 1956 having its               )
    registered office at L & T House,            )
    N.M. Marg, Ballard Estate,                   )
    Mumbai - 400 001 and Corporate Office at )





    8th Floor, Metropolitan, C-26/ C-27,         )
    "E" Block, Bandra Kurla Complex,             )
    Bandra (E), Mumbai - 400 051.                )     ..    Respondent
                 ---
    Mr.Chirag Mody a/w Ms.Poonam Shukla a/w Mr.Lalit Katariya i/by
    M/s.Katariya & Associates for the petitioners.
    Mr.Anand Poojari a/w Ms.Shakuntala I. Joshi a/w Ms.Nikita Pawar a/w
    Ms.Jalpa Pithadia i/by M/s.S.I. Joshi & Co. for the respondent.
                 ---




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                                     CORAM       : R.D. DHANUKA, J.

                                     DATE        :  23rd March 2016




                                                                                   
    Judgment :-




                                                           
    .                By this petition filed under Section 34 of the Arbitration

and Conciliation Act, 1996 (hereinafter referred to as "the said Act"), the

petitioners have impugned the arbitral award dated 6 th May 2015 made by the learned arbitrator directing the petitioners jointly and severally to pay to the respondent a sum of Rs.51,03,66,127.61 consisting of over

due installment amounts, future loan installments, overdue compensation etc. with interest @18% p.a. on the said sum of Rs.51,03,66,127.61 from

16th March 2013 till payment and/or realization and arbitration cost.

The respondent was the original claimant in the arbitral proceedings whereas the petitioners were the original respondents. Some of the relevant facts for the purpose of deciding this petition are as under :-

2. On 13th October 2011, the respondent herein and the

petitioner no.1 entered into a Facility Agreement by which the respondent sanctioned a term loan of Rs.50 crores to the petitioner no.1 on terms

and conditions mentioned in the sanction letter dated 10th October 2011. The petitioner no.2 executed an independent Deed of Corporate Guarantee in favour of the respondent. The petitioner no.3 executed a Personal Guarantee in favour of the respondent to secure loan granted

to the petitioner no.1 under the facility agreement.

3. There was a default committed by the petitioner no.1 in making repayment of the loan granted by the respondent. Several correspondence were exchanged between the parties. On 18th March

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2013, the respondent through their advocate's notice informed the

petitioners that as of 15th March 2013, a sum of Rs.6,13,86,657.61 was due and payable by the petitioners to the respondent with further interest

thereon and called upon the petitioners to pay the said sum. In the said notice, it was made clear that if the payment as demanded was not made, event of default shall be deemed to have been occurred under

Clause VII of the said agreement and a sum of Rs.51,03,66,127.61 will forthwith become due and payable.

4. It was also made clear that the respondent will be

constrained to enforce the securities created in favour of the respondent by the petitioner no.1 and will also be constrained to invoke the

guarantees given by the petitioner nos.2 and 3. The respondent made it clear that the respondent will be constrained to take a legal action against the petitioner no.1 and petitioner nos.2 and 3 under Civil as well

as Criminal Laws for recovery of the said amount.

5. As there was no response to the said notice dated 18 th March 2013, the respondent through their advocate's notice dated 8th

May 2013 to all the petitioners once again recorded that despite the notice issued by the respondent, the petitioners failed and neglected to pay the said amount demanded and thus, events of default had occurred

under Clause VII of the facility agreement. The respondent accordingly terminated the said facility agreement. By the said notice, the respondent invoked Clause 9.1 (i) of the facility agreement and Clause 26(i) of the Guarantee Agreements which provides for resolution of disputes or differences or claim that arise between the parties for adjudication to the sole arbitrator to be appointed by the respondent. The respondent

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accordingly appointed Mr.Bharat B. Jain, Advocate as a sole arbitrator.

There was no response to the said notice.

6. On 16th May 2013, the respondent addressed a letter to Mr.Bharat Jain, learned arbitrator informing him that the petitioners had failed to comply with the requirements of the said demand letter and

thus the disputes had arisen which were referred to him. The respondent requested the learned arbitrator to commence the arbitral proceedings.

A copy of the said letter was sent to the petitioners. There was no response to the said notice also. Learned arbitrator directed both the

parties to file pleadings and documents. The respondent filed a statement of claim along with the documents. Admittedly, the petitioners did not

file any reply inspite of several opportunities rendered by the learned arbitrator. The matter was pending before the learned arbitrator for adjudication. The respondent also filed affidavit of evidence of witness

proposed to be examined. Admittedly the said copy of the affidavit of

evidence was served upon the petitioners.

7. Learned arbitrator made an award dated 6th May 2015 allowing the claim made by the respondent. The said award has been impugned by the petitioners in this petition filed under Section 34 of the said Act.

8. Mr.Mody, learned counsel appearing for the petitioners submits that the petitioner nos.2 and 3 were admittedly not the parties to the facility agreement. He submits that there were separate arbitration agreements in the facility agreement and in the deeds of guarantees executed by the petitioner no.1 and the petitioner nos.2 and 3

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respectively with the respondent. It is submitted that even according to

the respondent, a default was committed by the petitioner no.1 under the facility agreement. He submits that the respondent thus could not

have invoked the arbitration agreement recorded in the facility agreement as well as in the deeds of guarantees together and could not have filed one common reference before the learned arbitrator.

9. The next submission of the learned counsel for the petitioners is that the arbitral proceedings did not commence before the

learned arbitrator as contemplated under Section 21 of the said Act. In

support of this submission, the learned counsel invited my attention to the notice dated 18th March 2013 issued by the respondent through

their learned advocate. He submits that in the said notice dated 18 th March 2013 issued by the respondent, there was no invocation of the arbitration agreement. He submits that the said notice was merely a

demand notice. It is submitted that under Clause VII of the facility

agreement, unless 14 days' notice to cure the breaches alleged to have been committed by the petitioners was given, the respondent could

not have invoked the arbitration agreement.

10. The next submission of the learned counsel for the petitioners is that though in the statement of claim filed by the

respondent, the respondent placed reliance on the statement of account of the petitioner no.1 in the books of the respondent, such statement of account was not produced before the learned arbitrator by the respondent. He submits that the learned arbitrator has allowed the entire claim merely on the basis of the particulars of claim annexed to the statement of claim.

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11. It is submitted by the learned counsel for the petitioners that

the petitioners were though granted time to file affidavit-in-reply before the learned arbitrator, since the petitioners were negotiating the settlement

with the respondent, the petitioners did not file affidavit-in-reply. He submits that the learned arbitrator ought to have given opportunity to the petitioners to cross-examine the witness examined by the respondent.

He submits that the impugned award is thus in violation of principles of natural justice.

12. It is submitted by the learned counsel for the petitioners that

though all the documents relied upon by the respondent including the facility agreement, deeds of guarantees, agreement of pledge etc. were

required to be stamped under the provisions of Maharashtra Stamp Act, the learned arbitrator overlooked this important aspect and considered those documents in the impugned award. He submits that each of these

documents required payment of stamp duty under various Articles and

more particularly Article 5 (h)(A) (iv)(b) of Schedule I and Article 54 of the Maharashtra Stamp Act. The reliance is also placed on Section

19 of the Maharashtra Stamp Act.

13. The last submission of the learned counsel for the petitioners is that though the petitioners had made payment of Rs.2 crores to the

respondent pursuant to the order passed by the Company Court in the company petition filed by the respondent against the petitioners, the respondent has not given credit of the said amount.

14. Mr.Poojari, learned counsel appearing for the respondent, on the other hand, invited my attention to the letters dated 18 th March

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2013, 8th May 2013 and dated 16th May 2013 addressed by the

respondent to the learned arbitrator. He submits that copies of all these correspondence were also admittedly received by the petitioners. There

was no response by the petitioners to any of these letters.

15. It is submitted by the learned counsel for the respondent that

in the notice dated 18th March 2013, the respondent had made it clear that the amount as demanded if was not paid by the petitioners within

the time stipulated, non-payment of amount would constitute as an event of default under Clause VII of the facility agreement. He submits that

admittedly the petitioners did not make any payment in response to the notice dated 18th March 2013. The respondent, accordingly, invoked the

arbitration agreement recorded in the facility agreement as well as in the deeds of guarantees. He submits that since the events of default had already been occurred, the respondent was entitled to issue notice

invoking arbitration agreement. It is submitted that the notice invoking

arbitration agreement was received by the petitioners and thus the arbitral proceedings had commenced.

16. In so far as the submission of the learned counsel for the petitioners that the respondent could not have made a composite reference before the learned arbitrator i.e. reference under the facility agreement

and deeds of guarantees is concerned, it is submitted that the respondent could have invoked the provisions of deeds of guarantees admittedly in the event of the petitioner no.1 committing default under the facility agreement. He submits that both the agreements were inter-connected. It is lastly submitted that the petitioners did not raise any issue of jurisdiction before the learned arbitrator.

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17. In so far as the submission of the learned counsel for the

petitioners that the learned arbitrator did not give opportunity to cross- examine the witness examined by the respondent is concerned, learned

counsel for the respondent invited my attention to various Minutes of Meetings of the learned arbitrator and would submit that the arbitral proceedings had commenced in the month of May 2013 and was

pending before the learned arbitrator for two years. No affidavit-in-reply was filed inspite of several opportunities granted by the learned

arbitrator. It is submitted that the petitioners never asked for an opportunity to cross-examine the witness examined by the respondent.

He submits that before the last meeting was held before the learned arbitrator, the advocate representing the petitioners took discharge in

the matter. In the last meeting, Vice President-Legal of the petitioner no.1 was present and made submissions. Learned arbitrator in the meeting held on 18th February 2015 recorded these facts. It is stated in

the Minutes of Meeting that the hearing was concluded, by consent, for

making an award.

18. In so far as the issue of stamp duty raised by the learned counsel for the petitioners is concerned, it is submitted by the learned counsel for the respondent that the petitioners neither raised any issue of alleged insufficiency of payment of stamp duty before the learned

arbitrator by filing any affidavit-in-reply nor raised such objection across the bar and thus cannot be allowed to raise such issue for the first time in this petition filed under Section 34 of the said Act. In so far as the last submission of the learned counsel for the petitioners that the respondent has not given credit of the amount of Rs.2 crores paid by the petitioners pursuant to the order passed by the Company Court to the

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respondent is concerned, it is submitted that if any such credit is not

given by the respondent to the petitioners, the respondent is ready and willing to give such credit.

REASONS AND CONCLUSIONS :-

19. In so far as the first submission of the learned counsel for the petitioners that there being a separate arbitration agreement in the facility agreement and in the deeds of guarantees, the respondent could

not have made a composite reference to the learned arbitrator is concerned, a perusal of the arbitration agreement in the facility agreement

as well as in the deeds of guarantees executed by the petitioner no.1 and the petitioner nos.2 and 3 respectively clearly indicates that the provisions

of both the documents were to be read together and the obligations of the guarantors under the deeds of guarantees were depending upon the

default committed by the petitioner no.1 under the facility agreement. Be that as it may, the fact remains that the respondent made a common

reference to the learned arbitrator and had filed a composite statement of claim before the learned arbitrator. The petitioners did not raise any

objection about lack of jurisdiction before the learned arbitrator. In my view, the issue of jurisdiction in respect of common reference made by the respondent ought to have been raised not later than filing statement

of defence. In my view, thus this issue cannot be raised for the first time in this petition filed under Section 34 of the said Act and thus the objection now raised is accordingly rejected.

20. In so far as the submission of the learned counsel appearing for the petitioners that the arbitral proceedings could not commence in

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view of the respondent not issuing 14 days' notice to cure the breaches

alleged to have been committed by the petitioners is concerned, a perusal of the notice dated 18th March 2013 issued by the respondent

through their advocate makes it clear that by the said notice, the respondent had raised a demand calling upon the petitioners to pay the demanded amount. In paragraph 15 of the said notice, it was made clear

by the respondent that if the amount was not paid by the petitioners as demanded, event of default shall be deemed to have been occurred

under Clause VII of the said agreement. It was made clear in that event, the respondent would be constrained to terminate the agreements and

would take various steps for enforcement of the securities created in favour of the respondent by the petitioners by taking such legal action

under Civil as well as Criminal Laws as may be advised. It is not in dispute that the petitioners did not make payment within 14 days of the receipt of the said notice or even thereafter and thus committed a

default. In my view, in view of self-operative conditional demand

recorded in the said notice dated 18 th March 2013 and in view of the petitioners not having made any payment pursuant to the said notice

within 14 days or even thereafter, an event of default under Clause VII of the facility agreement had occurred. Since the event of default had occurred, the respondent became entitled to invoke arbitration agreement recorded in the facility agreement as well as in the deeds of guarantees.

21. A perusal of the notice dated 18th March 2013 issued by the respondent to the petitioners clearly indicates that the arbitration agreement was invoked by the respondent clearly in view of the fact that the petitioners had committed a default and an event of default

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had occurred as contemplated under Clause VII of the facility agreement.

By their letter dated 16th May 2013, the respondent had appointed Mr.Bharat B Jain as a sole arbitrator. There was no response to the said

notice also and more particularly no objection was raised that the arbitration agreement could not have been invoked by the respondent without giving 14 days' notice to the petitioners to cure the breaches

alleged to have been committed by the petitioners. Be that as it may, no such objection was raised even before the learned arbitrator. In my view,

this objection thus cannot be allowed to be raised at this stage in this petition filed under Section 34 of the said Act.

22. In so far as the submission of the learned counsel for the

petitioners that though the respondent had placed reliance on the statement of account in the statement of claim, the same was not filed before the learned arbitrator, the learned arbitrator has allowed the entire

claim merely on the basis of particulars filed by the petitioners is

concerned, a perusal of the record indicates that the petitioners did not dispute the liability under the facility agreement as well as deeds of

guarantees. The petitioners admittedly did not file any reply before the learned arbitrator. The respondent had examined the witness who relied upon various documents which were referred to and relied upon in the statement of claim before the learned arbitrator. The respondent had also

produced various documents and correspondence for consideration of the learned arbitrator. The petitioners did not dispute any of these documents at any point of time before the learned arbitrator. The petitioners also did not cross-examine the witness examined by the respondent who had placed reliance on the documents.

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23. A perusal of the impugned award rendered by the learned

arbitrator indicates that the learned arbitrator has considered the original documents produced by the respondent and also the contents of the

statement of claim and correspondence which remained uncontroverted.

24. A perusal of the arbitration petition also indicates that even

in this petition, the petitioners have not disputed their liability. The petitioners had only alleged the financial constraint upon the petitioners

due to unavoidable circumstances. In my view, the statement of claim which was supported by the original documents and correspondence

produced on record remained uncontroverted by the petitioners and in view of the fact that there was no cross-examination of the witness

examined by the respondent, the learned arbitrator, in these circumstances, was right in awarding the claim as made by the respondent in the impugned award. In my view, there is no substance in the

submission of the learned counsel for the petitioners that since the

statement of account was not produced by the respondent, the learned arbitrator could not have allowed the claim as made by the respondent.

The petitioners were not prevented from producing any statement of account showing a different position of account if they so desired before the learned arbitrator which the petitioners had admittedly failed.

25. In so far as the submission of the learned counsel for the petitioners that there was no opportunity given to the petitioners to cross- examine the witness examined by the respondent is concerned, it is not in dispute that the copy of the affidavit of evidence was served upon the petitioners. The matter, thereafter, was adjourned from time to time. The

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advocates who were representing the petitioners refused to appear and

informed the learned arbitrator about withdrawal of the brief. The Minutes of last Meeting of the learned arbitrator clearly indicates that

the Vice President-Legal of the petitioner no.1 was present in the meeting and was heard by the learned arbitrator and also the learned advocate representing the respondent. By consent of both the parties, the

hearing was concluded for the purpose of making an award.

26. In my view, since the witness examined by the respondent was available and the petitioner no.1 has chosen not to seek ig any opportunity to cross-examine the said witness, the petitioners cannot be allowed to urge that the learned arbitrator has violated the principles of

natural justice or that he had deprived the petitioners of cross- examination of the witness examined by the respondent. If the party does not seek any liberty to cross-examine the witness, such party cannot

be allowed to urge that there was no opportunity to cross-examine the

witness or that the impugned award was in violation of principles of natural justice. In my view, there is thus no substance in the submission

of the learned counsel for the petitioners.

27. Learned counsel for the petitioners fairly admitted that an opportunity was given by the learned arbitrator to file an affidavit-in-

reply but the petitioners did not file such affidavit in view of pending negotiation for settlement between the parties.

28. In so far as the issue of stamp duty raised by the learned counsel for the petitioners on facility agreement and various deeds of

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guarantees as well as other documents is concerned, it is not in dispute

that the petitioners did not raise any such objection before the learned arbitrator nor filed any affidavit-in-reply raising such objection. In my

view, the objection in respect of insufficiency of payment of stamp duty and the documents sought to be relied upon by the respondent herein had to be specifically raised either in the written statement or when the

respondent had tendered these documents before the learned arbitrator. The petitioners did not raise any such objection. No objection in respect

of insufficiency of stamp duty thus can be allowed to be raised even at the stage of final hearing before the learned arbitrator or in these

proceedings at this stage filed under Section 34 of the said Act. I am not inclined to allow the learned counsel for the petitioners to urge this

submission for the first time in this petition at this stage.

29. In so far as the submission of the learned counsel for the

petitioners that the respondent has not given credit of amount of Rs.2

crores paid by the petitioners pursuant to the order passed by the Company Court is concerned, learned counsel for the respondent fairly

states that if any such credit is not given to the petitioners, the respondent is ready and willing to give such credit. Statement is accepted. In my view, no prejudice is thus caused to the petitioners.

30. A perusal of the impugned award rendered by the learned arbitrator clearly indicates that the learned arbitrator has considered the pleadings and documents filed by the petitioners and also the affidavit of evidence. Therefore, the findings recorded based on the same being not perverse, this Court cannot interfere with such findings of facts recorded

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by the learned arbitrator in this petition filed under Section 34 of the said

Act. Petition is devoid of merits and is accordingly dismissed. No order as to costs.

R.D. DHANUKA, J.