Delhi High Court
Ge Countrywide Consumer ... vs Ms. Prabhaben Prahladbhai Patel ... on 22 May, 2006
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
Arb.A. No. 196/2006
1. The office report shows that notices issued by ordinary process are awaited. The registered AD notices issued have been returned back on account of refusal of the respondent to receive the notices. Respondents are thus deemed to have been served.
2. The petitioner has filed this petition under Section 11 of the Arbitration and Conciliation Act, 1996 seeking appointment of Mr.Sunil Jha, advocate as the sole arbitrator.
3. The petitioner is a company incorporated and registered under the Companies Act, 1956 and the petitioner company is stated to be in the business of providing financial/credit facilities for various types of loans to its customers. The respondent applied for a loan to the petitioner company and an amount of Rs. 12.0 lacs was sanctioned as the loan in pursuance to the agreement dated 24.6.2003. The loan was payable in 120 equal monthly Installments of Rs. 23,196/- commencing from 1.8.2003. The respondent executed the loan agreement as also the promissory note, declaration, power of attorney and undertaking-cum-indemnity. An equitable mortgage was created by deposit of title deeds in respect of property bearing No. A-13, Satadhars Society Bhuyanadev Sola Road, Ahmedabad, Gujarat.
4. Respondents are stated to have defaulted in repayment of the loans from 1.9.2003 onwards when the cheque was returned on account of 'insufficient fund' with the result that the entire loan was recalled along with the interest and the charges in terms of Clause 8.2 of the loan agreement. A legal notice dated 2.2.2006 was sent on the respondents which was duly served on the respondent No. 1 while notice issued to the respondent No. 2 has received back with postal remarks ?unclaimed?.
5. The petitioner invoked the arbitration clause and appointed Mr.Sunil Jha, Advocate as an arbitrator. The relevant Clause 11.1 being the arbitration clause reads as under:
All claims, disputes or differences whatsoever which may at any time hereafter arise between the parties hereto concerning this Agreement or its construction or effect or as to the rights, duties obligations or liabilities of the parties hereto or earlier of them under or by virtue of or in connection with this Agreement or any document executed or security created pursuant hereto or otherwise as to any other matter in any way connected with or arising out of or in relation to the subject matter of this Agreement (including without limitation, enforcement of the security) shall be referred to the Arbitration of a Sole Arbitrator jointly appointed by the parties hereto. The Arbitration shall be concluded in accordance with and subject to the provisions of Arbitration and Conciliation Act, 1996 or any statutory modification or replacement thereof for the time being in force. The place of the Arbitration shall be as mentioned in item No. (18) of the schedule.
6. The petitioner also sent another notice dated 15.12.2006 but the same has been returned unclaimed by the postal authority. Respondent has thus failed to give their consent for appointment of Mr.Sunil Jha, as the sole arbitrator.
7. The respondents have neither given their consent for appointment of an arbitrator nor have come forth before this Court to state their stand. A perusal of the document shows that the existence of the arbitration clause in the agreement between the parties and the allegations of the petitioner is there that the respondents have failed to clear their dues and honour their commitments in terms of the agreement.
8.In view of the facts set out above, I feel it appropriate to appoint Ms.Priya Kumar, Advocate, B-47, Sector 40, Noida, (Mobile No: 98113 55512), as the sole arbitrator to determine the disputes between the parties. The fee of the arbitrator is fixed at Rs. 25,000/-, apart from any pocket expenses to be initially borne by the petitioner.
9.Petition stands disposed of.
