M/S Ms Shoes East Ltd. vs Sareen & Co.
2014 Latest Caselaw 1548 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Order delivered on: March 24, 2014

+            CS(OS) No.2168/2012 & I.A. No.13008/2012

      M/S MS SHOES EAST LTD                                     ..... Plaintiff
                    Through            Mr.Pavan Sachdeva, AR

                          versus

      SAREEN & CO                                            ..... Defendant
                          Through      Defendant already ex parte.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The abovementioned suit has been filed by the plaintiff under Section 14 & 17 of the Arbitration Act, 1940 (in short, called the "Act") with a prayer to pass a judgment in terms of the Award dated 12th May, 2012 and decree the suit for Rs.9,22,568/- with future interest @ 18% per annum till the date of realization of payment from the defendant, in favour of the plaintiff and against the defendant.

2. Along with the suit, the plaintiff has also filed an application being I.A. No.13008/2012 under Section 28 of the Act seeking extension of time of arbitration proceedings from 20th August, 2007 till 12th May, 2012, i.e. the date on which the Award was made by the learned Arbitrator.

3. The defendant was served through publication on 10th October, 2013 and 11th October, 2013 and also by way of affixation. However, no one appeared on behalf of the defendant. Hence, the defendant was proceeded ex parte vide order dated 15th January, 2014.

4. The contention of the plaintiff is that this Court, under the law, has power under Section 28 of the Act to extend the time even after the award is passed. Mr.Pavan Sachdeva, Authorized Representative appearing on behalf of the plaintiff has referred previous orders passed by this Court in which the similar application against the other defendants was allowed, the details of which are given as under:-

(i) Order dated 7th October, 2013 passed in CS(OS) No.2065/2012 & I.A. No.12705/2012 (u/s 28 of the Act), titled as "MS Shoes East Ltd. vs. Aashish Goel and Co and Ors."

(ii) Order dated 7th October, 2013 passed in CS(OS) No.2068/2012 & I.A. No.12712/2012 (u/s 28 of the Act), titled as "MS Shoes East Ltd. vs. Amrit Lal Bajaj and Co and Ors."

(iii) Order dated 7th October, 2013 passed in CS(OS) No.2129/2012 & I.A. No.12886/2012 (u/s 28 of the Act), titled as "MS Shoes East Ltd. vs. Behari Lal and Co and Ors."

(iv) Order dated 7th October, 2013 passed in CS(OS) No.2130/2012 & I.A. No.12888/2012 (u/s 28 of the Act), titled as "MS Shoes East Ltd. vs. Sahyog Fiscal Services and Ors."

(v) Order dated 7th October, 2013 passed in CS(OS) No.2267/2012 & I.A. No.13631/2012 (u/s 28 of the Act), titled as "MS Shoes East Ltd. vs. Narendra K. Palrecha".

5. In view of the similar orders passed by this Court as mentioned above as well as the submissions made by Mr.Pavan Sachdeva, the application being I.A. No.13008/2012 is allowed. The time for passing of the award stand extended as prayed in the application. The same is disposed of accordingly.

6. As far as the main suit is concerned, few facts are that the plaintiff- Company had brought out a public issue in January-February, 1995 which was underwritten by 267 underwriters. The defendant was a part of the 267 underwriters. According to the plaintiff, the liability devolved on the

defendant as the issue remained under subscribed. Since underwriters, including the defendant, failed to fulfill their obligations, a request was made to Delhi Stock Exchange on 2nd May, 1995 to appoint an Arbitrator. As the Delhi Stock Exchange did not oblige, the plaintiff-Company approached this Court whereby Ms. Justice Manju Goel (Retd.) was appointed as sole Arbitrator on 14th March, 2007. The defendant chose not to appear before the Arbitrator whereupon Mr.O.P.Faizi, Advocate was appointed as Amicus Curiae in this matter and other connected matters for the purpose of assistance and in order to represent the case of the defendant as per record available before the learned sole Arbitrator.

7. As mentioned earlier, the award was passed by the learned Arbitrator on 12th May, 2012. No objections have been filed as yet against the award. Despite of service, the defendant failed to appear. The prescribed period for filing the objections has already expired as the defendant failed to file objections as provided under Sections 30 & 33 of the Act from the date of service of notice issued in the suit filed under Sections 14 & 17 of the Act. The similar orders for making the Award a rule of the Court and passing of decree are passed. Therefore, the relief sought in suit is called for.

8. Accordingly, as prayed, the Award is made a rule of the Court. A decree is passed in the sum of Rs.9,22,568/- along with future interest @ 18% per annum, in favour of the plaintiff and against the defendant. The plaintiff is also entitled for costs.

9. Decree be prepared accordingly in terms as indicated in the Award.

(MANMOHAN SINGH) JUDGE MARCH 24, 2014