Delhi High Court
Mala Puri vs Kotak Mahindra Bank Ltd. & Anr. on 12 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.127/2013 & CM No. 4095/2013
% 12th March, 2014
MALA PURI ......Appellant
Through: Mr. Dilip Singh and Ms. Roshan Ara
Khan, Adv.
VERSUS
KOTAK MAHINDRA BANK LTD. & ANR. ...... Respondents.
Through: Mr. Ashwani Kumar, Adv. for R-1
alongwith Sandeep Mehta, Manager
of R-1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. On 24.2.2014 the following order was passed:-
1. Counsel for the respondent No.1 wants to take
instructions from the bank in view of the fact that rates of interest
charged pre-litigation are 37% per annum and Award grants interest
@ 18% per annum, and both of which rates are prima facie against the
public policy and the ratio of a Division Bench judgment of this Court
in the case of Pandit Munshi Ram Associates Vs. DDA 2010 (3) Arb.
Law Reporter 284. I may also note that it is not known whether the
FAO 127/2013 Page 1 of 3
pre-litigation interest of 37% per annum is with monthly rest or
quarterly rest or so on.
2. List on 12th March, 2014.
2. Though counsel for the respondent says he has instructions that
respondent is agreeable to the observations in the above order dated
24.2.2014. Today most surprisingly, counsel for the appellant has done a U-
turn clearly indicating the lack of bonafide intentions on the part of the
appellant for repaying the credit card dues towards the respondent. It may
be noted that the present appeal is filed under Section 37 of the Arbitration
and Conciliation Act, 1996 against the impugned judgment of the court
below dated 4.1.2013 which has dismissed the objections filed by the
appellant/objector against the ex parte Award dated 20.5.2011. Ex parte
Award was passed for a sum of Rs.7,30,640.14 alongwith interest at 18%
per annum w.e.f 25.8.2010 inasmuch as appellant failed to appear in spite of
notice.
3. The relevant para of the court below dealing with the aspect of
service is para 10 and which reads as under:-
"10. So far as service of notice dated 30.12.2010 is concerned,
perusal of record shows that the Ld. Arbitrator this notice
of arbitration proceedings to the petitioner on the address
C/122, Puri House, Street No.5, East Azad Nagar, Delhi-
FAO 127/2013 Page 2 of 3
110051. It has not been disputed by the petitioner that
notice of reference did not bear her correct address. The
notice sent by the Arbitrator was on the correct address
of the petitioner. Postal receipt of sending the said notice
has also been perused which shows its dispatch. As per
section 27 of the General Clauses Act, if a
correspondence is sent on the correct address, it amounts
to due service on the addressee. So, in my considered
view, the petitioner was duly served with the notice of
arbitral proceedings as it was sent to her on her correct
address."
4. It is therefore clear that the appellant who has taken benefit of
credit card facility given by the respondent-bank, does not want to pay the
dues as payable in law. I cannot look into any aspects on merits inasmuch as
all aspects of merits had to be necessarily urged in the arbitration
proceedings, and which the appellant failed to do by not appearing in the
arbitration proceedings. Merits of the matter i.e defences on merits cannot
be urged in a proceeding under Section 34 of the Act, which is to be decided
on the basis of the record of the arbitrator.
5. In view of the above, there is no merit in this appeal, and the
same is therefore dismissed, leaving the parties to bear their own costs.
MARCH 12, 2014 VALMIKI J. MEHTA, J.
ib
