Arun Kumar Singh vs State Of Nct Delhi & Ors.
2013 Latest Caselaw 1124 Del

*                 HIGH COURT OF DELHI AT NEW DELHI

+         FAO No.297 of 2012 & CM No.12033/2012 (stay)

                                        Decided on : 6th March, 2013

ARUN KUMAR SINGH                                  ..... Appellant
            Through:             Mr.Sunil Kumar V.Nair, Adv.

                      Versus

STATE OF NCT DELHI & ORS.               ..... Respondents
              Through: Mr. Narayan Singh, Adv.


CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is an appeal filed by the appellant against the judgment dated

8.11.2011 passed by the learned ADJ in CS No.232/2010 titled

Sh.Arun Kumar Vs. Ms. Amba Leasing and Finance Company

& Ors. by virtue of which the objections of the appellant under

Section 34 of the Arbitration and Conciliation Act, 1996 for setting

aside the ex parte arbitral award dated 31.10.2009 was dismissed.

2. Briefly stated the facts of the case are that the appellant is an auto

driver by profession and in the month of February, 2007, he

purchased a second hand three wheeler bearing registration no. DL-

1R-G 9576 from one Chander Prakash. He had taken a loan from

the respondent no.2 herein and the said loan was to be paid in

terms of the agreement dated 17.2.2007 between the appellant and

the said respondent.

3. The appellant defaulted in payment of loan. The respondent no.2

invoked the arbitration clause in the agreement and got an

arbitrator appointed.

4. The learned Arbitrator issued notice to the appellant who did not

appear before the learned Arbitrator and he was proceeded ex

parte and an ex parte award was passed on 31.10.2009.

5. The award was challenged by the appellant before the learned ADJ

in CS No.232/2010. It was stated that that the principles of natural

justice were not followed as he was not served. The learned Court

sent for the record of the arbitrator and noted that the address

bearing No.S-184/219, New Sanjay Camp, Okhla Industrial area

Phase-I, Delhi, was the address shown in the objections at which

notices were sent to the appellant. It was duly proved before the

Arbitrator that the notice was sent to the appellant, at the said

address and the court decided the objections and came to a

conclusion that the appellant had been duly served but he had

purposely not chosen to appear before the Arbitrator with a view to

delay the disposal of the matter.

6. The learned ADJ dismissed the objections of non-service of the

appellant vide order dated 8.11.2011 after satisfying that the

appellant was duly served and he was deliberately keeping away

from the proceedings. It was also recorded that sufficient and

ample opportunities were given to the appellant to appear before

the Arbitrator.

7. Still feeling dissatisfied, the appellant has filed the present appeal

under Section 37 of the Arbitration and Conciliation Act, 1996.

8. The main contention of the learned counsel is that the principles of

natural justice have not been followed.

9. The second contention which is raised by the learned counsel is

that the agreement was a fabricated document and thirdly, he had

paid money to one Hariom and liquidated the entire amount. It is

further stated that he had already lodged an FIR against Hariom,

which is pending investigation.

10. I have carefully considered the submissions and gone through the

order passed by the courts below rejecting the objections.

11. So far as the question of non-service of the appellant is concerned,

this has been disbelieved by the courts below by holding that he

was duly served and he deliberately chose to avoid appearance

before the Arbitrator to stall the proceedings. If he has chosen to

be away despite service, then he has done so at his own peril. The

court cannot come to the rescue of a person who for no cogent

reasons tries to keep away from the processes of law and later on

chooses to participate in the proceedings at his own will, therefore,

it is totally wrong that the appellant was not at all served.

12. So far as the agreement on the basis of which the claim was lodged

by the respondent having been fabricated is concerned, it has not

been proved by the appellant before the courts below. The

objection of the appellant was that the agreement is a forged

document. The basic principle of law of evidence is that 'one who

asserts must prove'.

13. Since in the instant case, the appellant was alleging that the

agreement was forged and fabricated, essentially the burden of

proof was on him to prove that the agreement was forged and

fabricated. He has failed to do so. It is too late for the day to

contend that the agreement is forged and fabricated.

14. So far as the third objection with regard to the payment having

been made to one Hariom is concerned against whom the appellant

has lodged an FIR for the offence of cheating etc., that is of no

significance because if at all there is a dispute between Hariom and

him that is to be sorted between them. Hariom is not a party to

the present dispute. It is for the appellant to prosecute the matter

and ensure that the guilty is brought to book, so far as allegations

of cheating against him are concerned. Merely because there is an

FIR registered against a third person, it will not be a ground for

suspecting the proceedings conducted before the learned Arbitrator.

15. I prima facie, find that this appeal itself is misconceived and

accordingly, the same is dismissed. No order as to costs.

V.K. SHALI, J.

MARCH 06, 2013 RN