Rakhi vs G.E. Money Financial Services Ltd ...
2009 Latest Caselaw 3169 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 OMP No.36/2008

%                           Date of decision: August 13, 2009

RAKHI                                                ....Petitioner
                        Through: Mr. S.C. Soren, Advocate

                               Versus

G.E. MONEY FINANCIAL SERVICES                       ...Respondents
LTD & ANOTHER
                        Through: Ms. Gurmeet Bindra, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?                No

2.    To be referred to the reporter or not?         No

3.    Whether the judgment should be reported        No
      in the Digest?


RAJIV SAHAI ENDLAW, J.

1 The petition under Section 34 of the Act is preferred with

respect to an arbitral award dated 20th October, 2007 in favour of

respondent for recovery of monies jointly and severally from the

petitioner, her husband Sh. Chander Prakash and her father-in-law

Mr. Bramjit. It has been further awarded / directed that upon

default in payment of the said monies within three months, the

respondent would be entitled to sell the mortgaged property bearing

No. A-8X, First and Second Floor, Uttam Nagar, New Delhi, in

accordance with law, for recovery of the amounts due under the

award.

2 It is the case of the respondent that the petitioner, her

husband and father-in-law had approached the respondent for a loan

and in this regard entered into an agreement with the respondent

and wherein the petitioner and her husband and father-in-law were

described as borrowers. Besides the said agreement, the petitioner

and her husband and father-in-law are also stated to have signed

several other documents qua the said loan i.e. a declaration, demand

promissory note, power of attorney, and a memorandum of entry qua

creation of equitable mortgage of the property aforesaid. It is

further the case of the respondent that the loan amount under the

said documents was disbursed by crediting the same in the bank

account with the Indian Bank in the name of the husband of the

petitioner. The agreement stated to have been signed, provided for

adjudication of all disputes and differences arising out of and /or

with respect to the said transaction by the sole arbitrator to be

appointed by the respondent. The said documents of loan

transaction are of 23rd April, 2005.

3 It is further the case of the respondent that default having

been committed with respect to the said loan transaction and the

monies due having remained unpaid, legal notices dated 4th

December, 2006 were issued by the respondent to the petitioner, her

husband and father-in-law and inspite of which the payments were

not made.

4 On the arbitral record are found the separate replies seat in

December, 2006 by Mr. S.C. Soren, Advocate representing the

petitioner in the present petition, on behalf of the petitioner as well

as her father-in-law. The petitioner in the said reply denied any

transaction with the respondent and claimed that the property which

had been mortgaged was her 'istridhan' and denied that her husband

had any right to pledge the same; she also denied having signed any

documents and claimed to have discovered that the documents of her

property were missing only when attempt was made to forcibly

dispossess her therefrom. In the reply on behalf of the father-in-law

of the petitioner, it was stated that the husband of the petitioner had

died in April, 2006 in a motor car accident; the father-in-law also

denied the loan transaction. In both the replies copies of the

documents claimed to have been signed were asked for.

5 The respondent, in the circumstances aforesaid, appointed the

arbitrator to adjudicate its claims against the petitioner, her husband

and father-in-law. The arbitrator issued notices to all the said

persons. It is admitted by the petitioner also that the notice of

hearing before the arbitrator was served on the petitioner as well as

her father-in-law; they appeared together before the arbitrator.

However after so appearing on one of the hearings, they stopped

appearing and the arbitrator proceeded ex-parte against them and

the award aforesaid came to be published.

6 This petition has been preferred by the petitioner alone. No

petition challenging the award has been preferred by the father-in-

law of the petitioner. The reason therefor appears to be that the

documents which the respondent is holding by way of equitable

mortgage, though not found on the arbitral record or on the record

of this court are of an immovable property belonging to the

petitioner only.

7 It is the case of the counsel for the petitioner that the

petitioner and her father-in-law had before the arbitrator also sought

copies of the documents relied upon by the respondent and it is

contended that the arbitrator had directed the respondent to supply

the said copies but since the respondent failed to supply the copies,

the petitioner and her father-in-law stopped appearing before the

arbitrator.

8 The case of the petitioner in the objections also is of the denial

of loan transaction or of deposit of title deeds of her property. It has

also been pleaded in one of the paragraphs of the petition that the

petitioner had distanced herself from her husband in the beginning

of the year 2005 as her husband had developed unappreciable

habits, lavish expenditure, extra-marital relations, and had

consequently started neglecting the family. During the arguments

the counsel has also argued that the husband of the petitioner had

prior to his demise started residing with some other woman in

Bahadurgarh. Though the same is not pleaded nor any document

filed in support thereof, reliance is placed on the death certificate of

the husband at the address of Bahadurgarh.

9 The petitioner having not appeared before the arbitral tribunal

and having not pressed the aforesaid pleas before the arbitral

tribunal, the objections on those pleas are not now untenable.

Reliance in this regard can be placed on recent judgment in J.G.

Engineers Pvt. Ltd. Vs. N.B.C.C. 2008 (4) Arb. LR 578 (Delhi)

holding that the petitioner cannot make out a new case in these

proceedings and which inspite of opportunity had not been made /

pressed before the arbitral tribunal.

10 Even otherwise I do not find the plea of the petitioner to be

believable even prima facie. On inquiry the counsel for the

petitioner has informed that the petitioner was married to her

husband in or about the year 2000. The mortgaged property was

purchased in the year 2004. As per the case set up by the petitioner,

at that time the petitioner was residing with her husband in as much

as she is claimed to have distanced herself from her husband in the

year 2005 only. The counsel for the petitioner has orally argued that

the money for purchase of the property was provided by the father of

the petitioner. No document in that regard has been produced. It is

found highly unlikely that the father of the petitioner would provide

the money for purchase of the property when the petitioner was

residing with her husband and when her relations with her husband

are also stated to have been cordial. On inquiry it is further stated

that the petitioner has two children out of the said marriage.

However the counsel is unable to give the dates of their birth. It has

also been inquired from the counsel whether the petitioner claims a

share in the estate of her husband. The answer is again in the

affirmative. It is also admitted on inquiry that the petitioner along

with her husband was residing in the mortgaged property, though it

is claimed that on the petitioner distancing herself, the husband had

started living on Bahadurgarh.

11 The factum of the differences between the petitioner and her

husband is also falsified from the petitioner and her father-in-law

engaging the same advocate to give reply to the legal notices in

December, 2006 and also appearing together before the arbitrator,

though now at time of hearing differences are alleged.

12 In all the aforesaid circumstances it appears that the pleas of

the petitioner being not aware of the loan transaction are only to

avoid the recovery of the loan taken from the mortgaged property.

Else in the objections, the receipt of loan amount by the husband is

not disputed. The loan transaction is of 23rd April, 2005. It has not

been stated as to who operated the bank account in which the loan

amount was credited, what was the balance in the said account on

the date of the demise of the husband of the petitioner and who

withdrew the monies if any in the said account on the demise of the

husband.

13 I have also perused the signatures on the loan documents and

the signatures of the petitioner in the present petition. There

appears to be sufficient identity between the two sets of signatures.

14 In the aforesaid circumstances no merits are found in the

petition under Section 34. The same is dismissed. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) August 13, 2009 J