Ravinder P. Kumar vs Sparrow Technologies Limited
2003 Latest Caselaw 854 Del

JUDGMENT

H.R. Malhotra, J.

1. This is an application made by the defendant under the provisions of Section 8 of the Arbitration and Conciliation Act 1996 seeking directions of the Court to refer the matter to the arbitration instead of proceeding with the suit filed by the plaintiff for recovery of sum of Rs. 10,00,000/- there being arbitration agreement between the parties.

2. It is stated in the application that a Memorandum of Understanding was executed between the parties dated 9th January,1998 incorporating various clauses of understanding between the parties about the implementation of the contract and it was further agreed in clause 11 of the Memorandum of Understanding that in the event of any dispute between the parties, the same shall be referred to an arbitration of a single Arbitrator or two Arbitrators. According to the applicant-defendant, the dispute in question as agitated in the plaint being a subject matter of the Arbitrator, the same should be referred to the Arbitrator.

3. The defendant while making this application also filed photo copy of the Memorandum of Understanding containing the arbitration clause duly attested by the Notary. The defendant however did not file the original agreement, same having been lost and misplaced and not traced out yet.

4. This application has been seriously contested by the plaintiff and the reply thereto has been filed by them assailing the correctness-genuineness of the Memorandum of Understanding.

5. Plaintiff termed this documents as forged document and stated that this document had never been executed or signed by the plaintiff. To show that the such document is false and fabricated, the plaintiff stated at the first instance that the documents purported to be signed by the plaintiff has been prepared by way of traced forgery and therefore the original Memorandum of Understanding has not been filed with a view to avoid detection of forgery. It is further stated by the plaintiff that the defendant who allegedly signed this Memorandum of Understanding on 9th January,1998 at Verna (Goa) had also signed the minutes at Bangalore on the same date and it was actually not possible for the defendant to be present at both the places on the same date and therefore according to the plaintiff Memorandum of Understanding is a forged document. This document is further assailed on the ground that the Manager of the plaintiff viz. Sh. John, was present in Delhi all through this time and as such he could not be present either at Goa or at Bangalore on 9th January,1998 for the purpose of witnessing the document Memorandum of Understanding.

6. Attestation of this document by Notary is also being assailed on the ground that Notary attested the photostat copy without looking into the original which according to the defendant had been misplaced. Even the judicial stamp paper on which this Memorandum of Understanding has been typed out is being challenged by the plaintiff stating therein that it was purchased much prior to the date of writing and more particularly at a time when no business had been planned and also at a time when there was no likelihood of any agreement being executed between the parties.

7. For all these reasons the plaintiff have pleaded that Memorandum of Understanding is a blatant forgery and is based on falsehood and cannot be given any recognition in the eyes of law.

8. Defendant has filed rejoinder to the reply of the plaintiff reasserting the averments made in their application and repudiating the allegations made in the reply. On the aspect of presence of parties at both the places i.e. Goa and Bangalore it is stated by the defendant that the distance between Bangalore and Goa is hardly 600 Kms and it is very much possible for the defendant to travel between Bangalore and Goa either by flight which takes only 50 minutes via Bombay or by Car which ordinarily takes about 7 hours.

9. It is pertinent to point out here that the defendant failed to elaborate as to which mode of transport was availed by him for covering the distance between Bangalore and Goa. No proof has been furnished in this regard that the defendant was present at the time when minutes were signed at Goa on the same date i.e. 9th January,1998.

10. On the aspect of using the stamp paper much earlier to the date when Memorandum of Understanding was executed, the defendant replied that the whole exercise of executing the minutes at Goa and also exercise of executing the Memorandum of Understanding was done at a very short time. The stamp paper which was also available with the defendant was therefore used. I am not impressed by such reasons as the defendant was under legal obligation to purchase the stamp paper for the specific purpose for which it was specifically required to be used.

11. Defendant has also not been able to produce the original Memorandum of Understanding. Since the defendant desired this Court to believe the execution of Memorandum of Understanding which has since been denied by the plaintiff, burden heavily lies on the defendant to prove the execution of such document. He ought to have discharged his obligation by producing the original documents on record which he states has since been lost or misplaced details of which are again missing. In the application nor does this application state as to whether the defendant took any step by lodging any report with the authorities about such misplacing of the document.

12. Defendant has further stated that the signatures of the plaintiff on this document can be got verified by sending it to the Handwriting Expert. I may state that unless original document is on record, no authentic report can be expected from the Handwriting Expert as this Court has experienced in so many cases that FSL has expressed their inability to give detailed report in the absence of original documents. I am afraid if FSL would be able to give authentic report on the basis of the photostat copies of the documents. Even otherwise perusal of the photostat copies of such documents leaves doubt in my mind about authenticity of such document as it is noticed that arbitration clause has been shown on the last page of the document despite there being sufficient space available on the prepage i.e. Page No. 2 of the document but that sufficient space available on page 3 was left blank. Instead arbitration clause was incorporated on the next page. If one looks to page 1 of this document this would show that this page was completely typed out whereas page 2 was not typed out in the same manner but arbitration clause was carried forward to last page of this document. What made the defendant to do so is not understandable and therefore doubt goes in my mind about the genuineness of this document. Even otherwise defendant has not been able to show as to how he reached Goa on the same date after having signed the Memorandum of Understanding at Bangalore. The defendant was under legal obligation to clear this doubt in the mind of the Court particularly when plaintiff had taken up this plea. The defendant has deliberately concealed this fact from the Court and therefore inference can be drawn against him that this Memorandum of Understanding was never executed between the parties on 9th January,1998.

13. For all these reasons the application of the defendant merits dismissal. Dismissed as such.