Delhi High Court
Sangeeta Chadha And Ors vs Bansal Cedits Ltd on 27 September, 2017
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:27th September, 2017
FAO(OS) (COMM) 182/2017 & CM Nos.35501-06/2017
SANGEETA CHADHA AND ORS ..... Appellants
Through Mr.N.M.Popli and Mr.V.M. Popli,
Advs.
versus
BANSAL CEDITS LTD ..... Respondent
Through Mr.Kunal Madan, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (Oral)
Sangeeta Chadha, N.K. Chadha and Anil Chadha in this appeal
under Section 13(1) of the Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts, 2015 impugn the final
judgment and order dated 07.03.2017 passed by the learned Single Judge
in OMP (COMM) 456/2016, dismissing their objections under Section 34
of the Arbitration and Conciliation Act, 1996 (in short 'A & C Act').
2. The appellants, vide the said objection petition, had challenged the
ex-parte arbitral award dated 19.10.2015 passed by the sole arbitrator Mr.
R.C. Vashist.
3. The impugned order holds that the objections were barred by
limitation. The award dated 19.10.2015 was duly served upon the
FAO(OS)(COMM) 182/2017 Page 1
appellants by registered post on 21.10.2015. The objections under Section
34 of the Act filed on 3.10.2016 were barred by limitation.
4. The appellants' contend that the award was served on a different
address, namely, III-E/26, Nehru Nagar, Ghaziabad, whereas the
appellants were residents of III-E/126, Nehru Nagar, Ghaziabad. The said
contention was rejected by the single judge, after noticing that the
registered post was delivered to one of the appellant, i.e. Anil Chadha,
whose Mobile No.9810000603 was recorded on the delivery receipt.
5. We agree with the learned Single Judge that the objection petition
was clearly barred by the limitation as per Section 34 (3) of the A & C
Act.
6. The appellants had also failed to appear before the Arbitrator. The
award dated 19.10.2015 is an ex-parte award. This is a case of multiple
and repeated defaults.
7. The main grievance raised by the appellants is that the learned
Single Judge should not have examined and commented on the merits, if
the objections were barred by the limitation. Learned Single Judge had
examined and considered the objections on merits for the benefit of the
appellants and to ensure that no injustice was done. We do not appreciate
and find merit in the said contention.
8. Learned counsel for the appellants has submitted that the appellants
had not borrowed and taken loan of Rs.1,00,00,000/-. Even if we add Rs.
48,09,305/- and Rs.23,00,000/-, the total amount would be Rs.72,09,305/-.
The Arbitrator had erroneously taken the borrowed amount as
Rs.1,00,00,000/- and has pronounced the award.
FAO(OS)(COMM) 182/2017 Page 2
9. Same contention was examined and rejected by the learned Single
Judge, who has observed that there was earlier loan agreement dated
31.03.2011, being Agreement No.5081-P-28/2011, and Rs 48,09,250/-
was given as loan. Rs.77,00,000/- was outstanding in this agreement,
when the Agreement No.S-5613-P-28, dated 14.06.2013, was executed.
At that time, the appellant No.1 Sangita Chadha had written the letter
dated 28.03.2012, followed by another letter dated 14.06.2013. The
second letter refers to Rs. 77,00,000/- as the payment due under the loan
agreement as per the list attached. The appellant, Sangeeta Chadha was
paid Rs.23,00,000/- by RTGS in her account. Outstanding amount of
Rs.77,00,000/- due under the Agreement No. 5081-P-28/2011 dated
31.3.2011 was discharged by passing book entries and transferred to the
new Agreement No. S-5613-P-28 dated 14.06.2013. The plea raised by
the appellants is sham and not bona fide. This contention was not raised
by the appellants before the Arbitrator as they have failed to appear and
contest the proceedings.
10. Along with present appeal, the appellants have filed CM
No.35502/2017 for taking on record additional documents, being
annexures P-6 to P-8. Annexure P-6 is a copy of the petition under Section
9 of the Act filed by the respondent. Annexure P-7 is a copy of the notice
dated 06.02.2015 sent by the sole Arbitrator to the appellants and
Annexure P-8 is the order passed on 16.03.2015 by the Additional District
Judge on the application under Section 9 of the Act holding that the Court
lacks pecuniary jurisdiction. After the order dated 16.03.2015, the
respondent had filed OMP (I) No.225/2015 before Delhi High Court under
Section 9 of the Act and by order dated 18.05.2015 notice was directed to
be issued to the appellants. The appellants were restrained from selling,
FAO(OS)(COMM) 182/2017 Page 3
parting or creating any third party interest in respect of the property
bearing No.III-E/126, Nehru Nagar, Ghaziabad, UP. On 10.09.2015 the
appellants had entered appearance. The Court on the said date had
directed that the matter be listed before Delhi High Court Mediation and
Conciliation Centre on 21.09.2015 at 4.00 p.m. The OMP was listed on
15.12.2015 for reporting the outcome of the mediation proceedings.
Interim order was directed to be continued. It is submitted that the award
was passed on 19.10.2015. Mediation had failed. The orders in the
mediation proceedings are not filed. They are withheld. In the absence of
the relevant documents we would not assume that the mediation
proceedings were still pending when the award was pronounced. The
arbitration proceedings were not stayed. Moreover, this does not explain
the failure and lapse to challenge the arbitration award, within the
limitation period.
11. In view of the aforesaid position, we are not inclined to issue notice
on the application seeking condonation of delay of 80 days in re-filing of
the appeal. We affirm the order passed by the learned Single Judge as do
not find any infirmity in the same. The appeal, as well as all pending
applications, are dismissed.
SANJIV KHANNA, J
NAVIN CHAWLA, J
SEPTEMBER 27, 2017/vp
FAO(OS)(COMM) 182/2017 Page 4
