Delhi High Court
Tika Ram Saini vs Abhipra Commodity Consultant ... on 24 July, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:24th July, 2018
+ O.M.P. 249/2009
TIKA RAM SAINI ..... Petitioner
Through: None.
versus
ABHIPRA COMMODITY CONSULTANT PVT. LTD.
..... Respondent
Through: Mr. Kamal Mehta, Advocate (M-
9810475712).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The present petition was restored on the last date, subject to payment
of Rs.7,500/- as costs which has not been paid.
2. The Petitioner has preferred this petition under Section 34 of the
Arbitration & Conciliation Act, challenging the arbitral award dated 19th
November, 2007 passed by Justice V.S. Aggarwal (Retired) - Ld. Sole
Arbitrator in arbitral case no. NCDEX/72/2007.
3. The award arises out of an agreement through the National
Commodities and Derivates Exchange Ltd. of which the Respondent
Abhipra Commodity Consultant Pvt Ltd (`Abhipra') is a member. Abhipra is
engaged in the business of share/commodity broking as a member of various
stock and commodity exchanges. It is guided by the National Commodity
and Derivatives Exchange Limited (`NCDEX'). The NCDEX is the
organization through which the matter was referred to a Sole Arbitrator. A
complaint was made by Mr. Tika Ram Saini on the ground that some
fraudulent transactions were carried out through his account and that he did
not carry out any transactions. Initially conciliation was attempted and upon
the same having failed, the matter was referred to the Sole Arbitrator. His
allegation was that no amount was due from him to Abhipra and his code
was being used to conduct `Benami transactions'. In the arbitration
proceedings, notice was issued to Mr. Saini as is recorded by the process
server in his report dated 17th July, 2007. The address of Mr. Saini was given
as 281, North Gandhi Colony, Muzaffarnagar, U.P.-251001. The notice was
not accepted at the said address although it was confirmed that he was a
resident of the said address. Upon repeated notices being given by the
Arbitrator, no appearance on behalf of Mr. Saini was made, leading to the
Arbitrator passing the impugned order. It is a short award which is set out
below:
"The claimant Abhipra Commodity Consultants Pvt.
Ltd. alleges that in course of regular business the
constituent/respondent had approached the claimant
for carrying out trade and commodities at National
Commodities and Derivate Exchange Ltd. The
documents like Client Registration Form, Risk
Disclosure Document had been executed.
On execution of the same the respondent started
dealing under Code MA 012. It carried on trade till
28th February, 2007. On 28th February, 2007 a sum of
Rs.30,70,878.71 were found to be due and payable by
the respondent. The claimant had reminded the
respondent and issued even a notice but no reply was
sent. Despite personal visits payment has not been
made. The present application has been filed for
recovery of the above said sum with interest.
The notice had been issued to the respondent. The
same is reported to have been served, a photocopy of
the postal acknowledgment even was made available
but there was no appearance of the respondent on the
date fixed for hearing i.e. 22nd October, 2007 and even
on 30th October, 2007.
The claimant has filed the affidavit of Shri Abhinav
Aggarwal on behalf of the company. In addition to that
in support of the claim the copy of the legal notice has
been placed on the record. There has been no reply on
behalf of the respondent. It is not that when reply is not
received the claim is stated to have been proved.
The support of the aforesaid is available from the
statement of account filed by the claimant as copy of
which is annexed as Annexure P4. It was stated to have
been regularly been maintained in due course of the
business and it clearly reveals that the amount claimed
is due.
Not only that the trade done and reports and the
contract notes, copies have even been filed. Otherwise
also there is precious little on the record to indicate
that the amount claimed in not due. When the contract
notes were being sent without any objection and the
accounts revealed that the amount is due. I find no
reason to hold that the claim can be disallowed.
However, the amount of interest claimed is excessive. It
should only be 12% p.a. Resultantly the award is
passed for a sum of Rs.30,70,878.71. The claimant
would also be entitled to interest from 28th February,
2007 till the date of the award. It is directed further
that if the said amount is not paid within one week the
claimant would be entitled to further interest @ 12%
p.a. on the principal amount till the amount as such is
paid."
4. Thus, the award was passed in the absence of Mr. Saini who chose not
to appear. The present objections were filed on the ground that the Arbitrator
never served Mr. Saini and the main ground taken is that the address given
of Muzaffarnagar belongs to the aunt (Buva) of Mr. Saini. Since, he did not
have any other address, he had submitted the said address, however, by the
time dispute had arisen, he had moved out of the same premises. It is also
claimed in the objections that he was induced by Abhipra's local employee
to give the Muzaffarnagar address and sign the various forms. The petition
was initially listed on 13th May, 2009 on which date notice was issued to the
Respondent. A perusal of the record shows that the counsel for the Petitioner
appeared sometime till 2011. However, thereafter there was no appearance
and on 16th December, 2016, the petition was dismissed for non-prosecution.
5. On 17th January, 2017, an application was filed seeking restoration of
the petition which was finally restored on 12 th February, 2018 subject to
payment of Rs.7,500/- as costs. Today, the matter is listed for hearing, but
none appears for the Petitioner. The costs have also not been paid. The court
has gone through the arbitral award which was made in the absence of Mr.
Saini. The Arbitrator took the statement of accounts which was submitted by
the claimant i.e. Respondent as being true and correct and accordingly
proceeded to pass the award. Since, there is no appearance on behalf of the
Petitioner and the costs have not been paid, this court has no option but to
dismiss the objections. The petition is accordingly dismissed.
PRATHIBA M. SINGH
JUDGE
JULY 24, 2018/Rahul
