Delhi High Court
Manish Jain vs M/S. Hdb Financial Services & Ors on 16 January, 2018
$~3
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th January, 2018
+ CM (M) 615/2015 and CM APPL.11815/2015 (stay)
MANISH JAIN .... Petitioner
Through: Mr. K. Sunil, Advocate with
Ms. Anuradha Kaushik, Advocate
Versus
M/S. HDB FINANCIAL SERVICES & ORS...... Respondents
Through: Ms. Priyanka Tomar, Advocate for
R-1 & R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petition at hand has been filed to assail the order dated
25.03.2015 whereby the application of the respondent under Section 8
of the Arbitration and Conciliation Act, 1996 was allowed and the
parties were referred to arbitration in the context of the dispute
brought before the Additional District Judge in civil suit No.69/2013
instituted by the petitioner seeking recovery of Rs.10,70,140/-
2. A copy of the plaint presented by the petitioner in the civil court
on 25.02.2013 has been submitted (Annexure P-2). It is clear from the
averments in the said plaint that the dispute arises out of an agreement
of loan taken by the petitioner from the first respondent. It is fairly
conceded in these proceedings that the said loan agreement had an
arbitration clause. The petitioner contends that the loan amount has
already been re-paid, his prime grievance being that on account of
collusion and connivance of the second and third respondents, he was
induced to part with money which was not payable. It is his case that
he was assured that half of the process fee would be refunded, but the
said amount was not paid and instead has been grabbed by the second
and third respondents. It is also his case that seven blank cheques duly
signed by him, which were taken over at the time of advancement of
the loan, were not returned in spite of the assurances held out. It is also
his case that he was charged interest beyond his liability and that in
spite of it having been agreed to the contrary, pre-payment charges
were recovered. He prayed for a decree in the sum of Rs.10,70,140/-
with interest @ 18% per annum pendente lite and future, such amount
inclusive of the pre-payment charges of Rs.8,08,515/-, notice charges
at Rs.5500/-, interest of Rs.6127/-, besides damages in the sum of
Rs.2,50,000/-.
3. When the application under Section 8 of the Arbitration and
Conciliation Act, 1996 was filed, the petitioner resisted the same
arguing that the nature of the case brought before the civil court was
such as could not be referred to arbitration. The additional district
judge by the impugned order, however, rejected the contention
referring, inter alia, to Hindustan Petroleum Corporation Limited vs.
Pinkcity Midway Petroleum (2003) 6 SCC 503.
4. The petitioner relies on N. Radhakrishnan vs. M/s. Maestro
Engineers & Ors., AIR 2010 SC (Supp.) 307. It is his submission that
the case at hand also presents such a scenario where the issues cannot
be properly addressed by the arbitrator.
5. Having heard the learned counsel and having gone through the
record, this court finds no merit in the petition. The factual matrix of
N. Radhakrishnan (supra) is distinguishable. Unlike the present case,
allegations of fraud and serious malpractice had been leveled there by
the plaintiff. It is in those peculiar facts and circumstances that the
Supreme Court held that the issues could not be properly addressed in
the arbitral proceedings.
6. In the present case the dispute relates to the loan agreement, the
grievances of the petitioner being that he has been made to pay more
than what was due. The ruling of the Supreme Court in P. Anand
Gajapathi Raju vs. P.V.G. Raju (2000) 4 SCC 539 which was
reiterated in Hindustan Petroleum (supra) squarely applies. The
language of Section 8 of the Arbitration and Conciliation Act, 1996 is
peremptory in nature. It having been shown that an arbitration
agreement exists and the dispute is covered by the said arbitration
clause, the civil court had no option but to refer the dispute to
arbitration.
7. The petition and the accompanying application are, thus,
dismissed.
R.K.GAUBA, J.
JANUARY 16, 2018
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