Kerala High Court
M/S. Sundaram Finance Ltd. Represented ... vs Ajith Lukose, S/O. P.A.Lukose on 2 April, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
OP(C) NO. 1034 OF 2024
CMA(Arb) NO.94 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM
PETITIONER/S:
M/S. SUNDARAM FINANCE LTD. REPRESENTED BY ITS AUTHORISED
OFFICER, 21 PATULLOS ROAD, CHENNAI-600002, REPRESENTED BY
ITS AUTHORISED OFFICER SRI.P.V.SUNIL KUMAR, SENIOR
MANAGER(LEGAL), AGED 53 YEARS, S/O P.K.VELAYUDHA PILLAI, THE
MONARCH, 1ST FLOOR, XL/1066B, P.T.USHA ROAD, ERNAKULAM,
KOCHI, PIN - 682011
BY ADVS.
VPK.PANICKER
S.MUKUNTH (SR.)(MS.53/2023(SEN))
RESPONDENT/S:
1 AJITH LUKOSE, S/O. P.A.LUKOSE
AGED 48 YEARS, PUTHENKALAYIL HOUSE, ETTUMANOOR, KANAKKARI,
KOTTAYAM, PIN - 686632
2 RANI AJITH W/O. AJITH LUKOSE
AGED 42 YEARS, PUTHENKALAYIL HOUSE, ETTUMANOOR, KANAKKARI,
KOTTAYAM, PIN - 686632
BY ADVS. Anish Lukose
RAYJITH MARK(K/690/2009)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, ALONG
WITH OP(C).926/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947
OP(C) NO. 926 OF 2024
CMA(Arb) NO.95 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOTTAYAM
PETITIONER/S:
SUNDARAM FINANCE LTD
21 PATULLOS ROAD, CHENNAI,REPRESENTED BY ITS AUTHORISED
OFFICER SRI.P.V.SUNIL KUMAR, SENIOR MANAGER(LEGAL), AGED 53
YEARS, S/O P.K.VELAYUDHA PILLAI, THE MONARCH, 1ST FLOOR,
XL/1066B, P.T.USHA ROAD, ERNAKULAM, KOCHI, PIN - 600002
BY ADVS.
VPK.PANICKER
S.MUKUNTH (SR.)(MS.53/2023(SEN))
RESPONDENT/S:
1 AJITH LUKOSE, S/O. O.A.LUKOSE
AGED 48 YEARS
PUTHENKALAYIL HOUSE, ETTUMANOOR, KANAKKARI, KOTTAYAM, PIN -
686632
2 RANI AJITH W/O. AJITH LUKOSE
AGED 42 YEARS
PUTHENKALAYIL HOUSE, ETTUMANOOR, KANAKKARI, KOTTAYAM, PIN -
686632
BY ADVS.Anish Lukose
RAYJITH MARK(K/690/2009)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, ALONG
WITH OP(C).1034/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
[OP(C) Nos.1034/2024 and 926/2024]
(Dated this the 2nd day of April, 2025 )
O.P.(C.) No.1034 of 2024 is filed challenging Ext.P9
order in C.M.A. (Arb) No.94/2023 and O.P.(C) No.926 of
2024 is filed challenging Ext.P8 order in C.M.A.(Arb)
No.95/2023 of the Principal District Judge, Kottayam. The
petitioner in both the cases is a Non-Banking Financial Public
Limited Company engaged in various financial activities,
including hire-purchase transactions. Since, parties are one
and the same in both the petitions, heard together and a
common judgment is passed.
2. The facts of cases are as follows:
OP© No.926 of 2024 : The respondents sought a loan from
the petitioner Company to purchase a 2018 VE CV Eicher
vehicle, bearing registration number KL 05/AS 270. The
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Company granted a loan of ₹16,60,000 to the first respondent,
under a loan agreement dated 17/01/2022. The 2nd respondent
acted as guarantor, vide a separate agreement. Subsequently,
the vehicle was hypothecated to the Company, and a charge
was registered in its favour. Further, the respondents defaulted
the loan repayments and despite issuing notice, they failed to
settle the dues. Thus, as per clause 22 of Ext. P1 agreement,
the Company referred the dispute to the Madras Chamber of
Commerce and Industries (MCCI), for the appointment of a
sole arbitrator.
3. The MCCI, as per its rules, appointed an arbitrator,
with due notice to the borrower and guarantor. Thereafter, the
petitioner appeared before the arbitrator and filed Claim
Petition, registered as Arbitration Case No.
RM/MCCI/15/2023. An Interim Application was also filed as
No. 46 of 2023, seeking an order to provide security of
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₹16,34,473.23, by the respondents or, failing that, for the
attachment of their properties through the Principal District
Court, Kottayam.
4. The Tribunal, by Ext.P5 order dated 28/03/2023,
directed the respondents to furnish security by 17/04/2023 and
due to their non-compliance, the Tribunal, vide order dated
17/04/2023, requested the Principal District Court, Kottayam,
to enforce the interim attachment of the respondents'
immovable property under Section 17 of the Arbitration Act,
read with Section 136 CPC, and to confirm the attachment. To
enforce Ext P5, the petitioner filed Ext P6 application under
Section 17(2) of the Act, before the Principal District Court,
Kottayam, as C.M.A.(Arb) No. 95/2023, against which the
first respondent filed objections challenging the validity of the
arbitrator's appointment. The Principal District Judge, after
considering the matter, dismissed Ext P6, by order dated
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25/01/2024. Aggrieved by Exhibit P8, this original petition is
filed.
5. O.P.© No.1034 of 2024 : The petitioner granted a loan
of ₹20,40,000/- to the first respondent, under a loan agreement
dated 17/01/2022, to purchase a 2018 VE CV Eicher vehicle
bearing registration number KL 05/AT 6064. Further, the
respondents defaulted the loan repayments and despite issuing
notice, they failed to settle the dues. Thus, as per clause 22 of
Ext P1, the Company referred the dispute to the Madras
Chamber of Commerce and Industries (MCCI), for the
appointment of a sole arbitrator.
6. The MCCI appointed an arbitrator, with due notice
to the borrower and guarantor. Thereafter, the petitioner
appeared before the arbitrator and filed its Claim Petition, as
Arbitration Case No. RM/MCCI/677/2022. The petitioner also
filed Interim Application No. 34 of 2023, seeking an order to
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provide security of ₹20,23,161/- by the respondents or, failing
that, for the attachment of their properties through the
Principal District Court, Kottayam.
7. The Tribunal, by order dated 13/02/2023, directed
the respondents to furnish security by 06/03/2023, and due to
their non-compliance, the Tribunal, vide order dated
06/03/2023, requested the Principal District Court, Kottayam,
to enforce the interim attachment of the respondents'
immovable property under Sec 17 of the Arbitration Act, r/w
Section 136 CPC, and to confirm the attachment. To enforce
Ext P6, the petitioner filed Ext P7 application under Section
17(2) of the Arbitration Act, before the Principal District
Court, Kottayam, as C.M.A.(Arb) No. 94/2023, against which
the first respondent filed objections challenging the arbitrator's
appointment as invalid. The Principal District Judge, after
considering the matter, dismissed Ext P7, by Ext P9 order
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dated 25/01/2024. Aggrieved by Exhibit P9, this O.P(C) stands
filed.
8. The counsel for the petitioner contends that the
impugned orders are erroneous, since the District Court erred
by dismissing Ext.P6 application in O.P.(C) Nos.926 and
Ext.P7 application in O.P.(C) No.1034 of 2024, based on a
misapplication of this Court's decision in M/s Hedge Finance
Pvt. Ltd. v. Vijish Joseph (2022 KHC 591), which solely
addressed the validity of a unilateral arbitrator appointment by
a disqualified Managing Director under Sections 12 of the
Arbitration Act, 1996. The lower appellate Court also failed to
realize that the parties to Ext.P1 had mutually agreed upon a
specific procedure for arbitrator appointment in the event of a
dispute and consequently, the ruling in Hedge Finance (supra)
is inapplicable to the present matter.
9. It is submitted that Sec 12 of the Arbitration
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Act does not apply in this case since the Petitioner did not
appoint or nominate any arbitrator to adjudicate the dispute
between the parties. Therefore, neither the selection nor the
choice of the arbitrator was dictated by any party to the
agreement, thereby precluding the application of the
disqualifications enumerated under the 5th and 7th schedule or
Sec 12 of the Arbitration Act. Further, it was asserted that
institutional arbitration under MCCI is conducted by an
independent institution governed by its own procedural rules
and hence, there is no basis for alleging bias, to the arbitrator's
independent functioning. The counsel also contended that
consent of the parties for arbitrator appointment is required,
only in cases where the parties have not previously agreed
upon a specific appointment procedure, prior to the dispute.
Thus, Ext.Nos.P8 and P9 orders in O.P.(C) Nos.926 and 1034
respectively, are perverse and illegal and hence, be set aside.
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10. The counsel for the respondent, on the other
hand, advanced that the appointment of the sole arbitrator was
without notice to the respondents, which in turn contravened
the provisions of the Arbitration Act. Hence, as per the settled
position of law, the appointment of the arbitrator itself was ex
facie bad, which goes to the root of the matter and therefore,
the appointment was without the concurrence of the
respondent violative of the relevant provisions of the Act and
is in contravention to the spirit of the dictum as held in M/S
Hedge (supra). Hence, asserts that the reasoning adopted by
the lower appellate court in both the orders challenged herein
are in order and prays for dismissal of these O.Ps.
11. The 1st respondent has entered into Ext P1 loan
agreement with the petitioner on 17.01.2022, for the purchase
of the above said vehicles. Article 22 of Ext.P1 deals with
law jurisdiction, arbitration. Article 22 sub clauses a, b and c
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reads as follows:
"LAW,JURISDICTION, ARBITRATION
(a) All disputes, differences and/or claim, arising out
of this agreement, whether during its subsistence or
thereafter shall be settled by arbitration in accordance with
the provisions of the Arbitration and Conciliation Act,
1996 or any statutory amendments thereof and shall be
referred to the sole Arbitration of an Arbitrator nominated
by MCCI Arbitration, Mediation and Conciliation Centre
(MAMC) run by The Madras Chamber of Commerce and
Industry (MCCI), presently having its office at "Karumuttu
Centre", I Floor, 634, Anna Salai, Nandanam, Chennai,
Tamilnadu-600 035 or Nani Palkhivala Arbitration Centre
(NPAC), presently having its office at New No.22,
Karpagambal Nagar, Mylapore, Chennai, Tamilnadu-600
004 or Madras Arbitration Solutions LLP, an Arbitral
institution presently having office at No.23/9, Vignesh
Apartments, Ground Floor, Jothi Ramalingam Street, West
Marnbalam, Chennai, Tamilnadu 600 033 or nominated by
the Managing Director of the Lender. The proceedings
shall be governed by the Rules and Regulations of the
MAMC/Nani Palkhivala Arbitration Centre/Madras
Arbitration Solutions LLP as the case may be, governing
arbitration proceedings. If the sole arbitrator is nominated
by the Managing Director of the Lender, such an arbitrator
may follow his/her own rules and procedure. The award
given by the sole arbitrator shall be final and binding on
the parties to this agreement.
It is a term of this agreement that in the event of such
an arbitrator to whom the matter has been originally
referred, dying or being unable to act for any reason,
MAMC or NPAC or Madras Arbitration Solutions LLP or
Managing Director of the Lender, as the case may be, shall
nominate another person to act as arbitrator. Such a person
shall be entitled to proceed with the reference from the
stage at which it was left by his/her Predecessor.
(b) The venue of arbitration proceedings shall be
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CHENNAI.
(c) The arbitrator so appointed herein above shall also
be entitled to pass an Award on the hypothecated asset and
also on any other securities furnished by or on behalf of
any of the parties to the arbitration."
12. When there was a default on the part of the 1st
respondent in remitting the monthly instalments in both the
instances, the petitioner invoked Article 22 mentioned above,
and referred the dispute to the MCCI for appointment of a sole
Arbitrator. Thereafter, the Registrar of MCCI was requested
to appoint an Arbitrator. The MCCI, acting on the request,
appointed a sole Arbitrator and the Arbitrator was informed
regarding the appointment with a copy to the lender as well as
the borrower and guarantor.
13. The petitioner appeared before the Arbitrator and
submitted a claim petition and also filed interim applications
for a direction to the respondents to furnish security within a
time to be stipulated by the Tribunal, and in default, to order
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for conditional attachment through the principal district Court,
Kottayam. Invoking section 17 of Arbitration and Conciliation
Act, 1996, (for short 'the Act'), the respondents were directed
to furnish securities within a stipulated time, for a sum of
Rs.16,34,473.23/- in O.P.(C) No.926 of 2024 and
Rs.20,23,161/- in O.P.(C) No.1034 of 2024, and in default in
furnishing security, to pass an order of attachment. Since the
orders were not complied by the respondents, the petitioners
filed applications under Section 17(2) of the Act before the
District Court, Kottayam and the same was numbered as
C.M.A. (Arbn.) No.95 of 2023 and C.M.A. (Arbn.) No.94 of
2023, seeking enforcement of the orders dated 17.4.2023 and
6.3.2023 in I.A.No.46 of 2023 and I.A.No.34 of 2023
respectively, under the CPC.
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14. Upon receiving notice, the 1st respondent appeared
and filed objections to both CMAs, asserting that the
arbitrator's appointment was fundamentally flawed and
contravened the Act's provisions, rendering the arbitrator de
jure ineligible. Consequently, the orders were deemed
inexecutable. The learned District Judge, through Exhibits P8
and P9, dismissed the applications, citing the court's judgment
in Hedge Finance Ltd. (supra).
15. The petitioner's senior counsel, Shri. S. Mukunth,
distinguished the present case from the Hedge Finance Ltd.
(supra) ruling. He contended that the latter was irrelevant as
the arbitrator's appointment was not unilateral by either party.
Instead, he pointed out that Article 22 of the Agreement
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mandated a request to the Madras Chamber of Commerce and
Industry (MCCI) for the appointment of the sole arbitrator. He
relied on a judgment of the supreme court in Nandan
Biomatrix Limited v. D 1 Oils Limited [2009) 4 SCC 495],
Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust
and others [(2012) 1 SCC 455] and Amazon.com NV
Investment Holdings LLC v. Future Retail Limited and
others [(2022) 1 SCC 209].
16. On the other hand, the counsel for the respondent
relied on Hedge Finance (supra), wherein this court held thus:
"On an analysis of the amended provisions of the
Arbitration and Conciliation Act, 1996 and the exposition of
the law laid down by the Hon'ble Supreme Court in the afore
- cited decisions, it is abundantly clear that the law mandates
that there should be neutrality not only for the Arbitrator but
also in the arbitrator selection process as well. Thus, in the
post -2015 amendment era, there are only two modes of
appointment of a sole Arbitrator (i) by express agreement in
writing between the parties, post the dispute, agreeing to waive
the applicability of Section 12 of the Act or (ii) by order of
appointment by the High court under Section 11 of the Act. If
the appointment of a sole arbitrator is made other than by the
above 2 methods, the appointment is ex facie bad and is in
contravention of the provisions of the Act, which goes to the
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roots of the matter, and the Arbitrator becomes de jure
ineligible to act as an arbitrator by the operation of law."
17. In the present case, Article 22 of the loan agreement
stipulates that the sole arbitrator shall be nominated by the
MCCI Arbitration, Mediation and Conciliation Centre
(MAMC), an entity operated by the Madras Chamber of
Commerce and Industry (MCCI). Thus, the arbitrator's
nomination does not originate from either party. The
petitioner requested the institution to make the nomination,
and the nomination was subsequently carried out by this
independent body, which adheres to its own rules for
Arbitration and Conciliation. Consequently, this nomination
cannot be construed as one prescribed by the petitioner. The
court's judgment in Hedge Finance (supra) addressed a
scenario where one party unilaterally nominated the arbitrator
without the other party's concurrence or a prior agreement as
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contemplated under Section 12(5) or its proviso of the
Arbitration Act.
18. The apex court in Nandan Biomatrix Limited
(supra) held that the crucial determination for the court is the
existence of an agreement to refer the dispute to arbitration,
with the intention to be discerned from the clauses within the
loan agreement. A reading of Article 22 of the loan agreement
unequivocally demonstrates the parties' agreement to resolve
disputes through institutional arbitration, as opposed to an ad-
hoc arrangement.
19. When an institution is approached for arbitration, it
is the institution itself that nominates the arbitrator in
accordance with its established rules. Neither party holds the
prerogative to choose the arbitrator. The apex court in
Sanjeev Kumar (supra), in paragraph 39, affirmed that an
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arbitrator can be appointed directly by the parties, without
court intervention, or by an institution specified in the
arbitration agreement. In the absence of consensus regarding
the arbitrator's appointment, or if the designated institution
fails to fulfill its function, the party seeking arbitration is
entitled to file an application under Section 11 of the Act for
the appointment of arbitrators.
20. Section 2(6) of the Arbitration Act grants parties
the autonomy to determine certain issues, including the right
to authorize any person or institution to resolve disputes
between them. Furthermore, Section 19(2) of the Act
empowers parties to agree on the procedural rules to be
followed by the arbitral tribunal in conducting its
proceedings.
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21. The Counsel also invoked Section 13 of the Act,
which mandates that a party intending to challenge an
arbitrator must, within 15 days of becoming aware of the
arbitral tribunal's composition or any circumstances outlined
in Section 12(3), submit a written statement detailing the
reasons for the challenge to the arbitral tribunal. Section
12(3) specifies that unless the challenged arbitrator
withdraws or the other party agrees to the challenge, the
arbitral tribunal shall rule on the challenge. If the challenge
is unsuccessful, the arbitral tribunal shall continue the
arbitral proceedings and issue an arbitral award. In the
present case, the respondent has, to date, not approached the
Arbitral Tribunal to challenge the arbitrator's appointment.
22. As previously noted, the appointment in Hedge
Finance (supra) was made unilaterally by one of the parties
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to the agreement, namely Hedge Finance. The relevant
clause in Hedge Finance (supra) stipulated that all
differences or disputes arising from the loan agreement
would be settled by arbitration in accordance with the
Arbitration and Conciliation Act, 1996, or its statutory
amendments, and referred to a sole arbitrator appointed by
'HFL'. Thus, in that case, the sole arbitrator was appointed
by HFL, a party to the agreement, without the other party's
consent and without an express agreement under the proviso
to Section 12 of the Act.
23. Turning to the facts of this case, there was no
unilateral appointment by the petitioner. The appointment
resulted from a nomination by an institution. Therefore, the
court's judgment in Hedge Finance (supra) is not applicable
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to the present circumstances. Therefore, the appointment in
this case stands on a distinct footing.
24. As mentioned earlier, it is true that Hedge Finance
(supra) explicitly stated that, following the 2015 amendment
to the Arbitration Act, there are only two permissible modes
of appointment: (1) by express written agreement waiving
the application of Section 12, or (2) by the High Court under
Section 11 of the Act. Consequently, it is evident that the
decision in Hedge Finance (supra) did not address a
situation where an institution was requested to nominate a
sole arbitrator. The District Judge failed to consider this
crucial distinction while dismissing the aforementioned
CMA (Arb) cases. In these circumstances, I am firmly of the
opinion that the impugned orders warrant interference, and I
hereby do so.
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In the result, these O.Ps.(C) are allowed, and the
Ext.P8 order in O.P.(C) No.926 of 2024 and the Ext.P9 order
in O.P.(C) No.1034 of 2024 are set aside. The District Judge,
Kottayam, is directed to reconsider CMA (Arb) Nos.94 and
95 of 2023 in accordance with the law and the observations
made herein.
Sd/-
BASANT BALAJI,
JUDGE
dl/
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APPENDIX OF OP(C) 926/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LOAN AGREEMENT DATED
17/01/2022 BEARING NO. R048600178 WITH THE
GUARANTEE AGREEMENT IS PRODUCED
Exhibit P2 A TRUE COPY OF THE COMMUNICATION DATED 15/12/2022
ISSUED BY THE PETITIONER TO THE REGISTRAR, THE
MADRAS CHAMBER OF COMMERCE AND INDUSTRIES (MCCI)
IS PRODUCED
Exhibit P3 A TRUE COPY OF THE MCCI FRAMED RULES FOR
ARBITRATION AND CONCILIATION IS PRODUCED
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED 30/12/2022
ISSUED BY THE MADRAS CHAMBER OF COMMERCE AND
INDUSTRIES (MCCI) TO THE PARTIES IS PRODUCED
Exhibit P5 A TRUE COPY OF THE ORDER DATED 28/03/2023 IN IA
NO.46/2023 IN ARBITRATION CASE NO.RM/MCCI/15/2023
ISSUED BY THE ARBITRATOR IS PRODUCED
Exhibit P6 A TRUE COPY OF THE APPLICATION FILED BY THE
PETITIONER IN CMA (ARB) NO.95/2023 IS PRODUCED
Exhibit P7 A TRUE COPY OF THE OBJECTION DATED 11/12/2023 TO
CMA (ARB) NO. 95/2023 OF THE HON'BLE PRINCIPAL
DISTRICT COURT, KOTTAYAM IS PRODUCED
Exhibit P8 A TRUE COPY OF THE ORDER DATED 25/01/2024 PASSED
IN CMA (ARB) NO.95/2023 OF THE HON'BLE PRINCIPAL
DISTRICT COURT, KOTTAYAM IS PRODUCED
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APPENDIX OF OP(C) 1034/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE LOAN AGREEMENT DATED
17/01/2022 BEARING NO. R048600180 WITH THE
GUARANTEE AGREEMENT IS PRODUCED
Exhibit P2 A TRUE COPY OF THE COMMUNICATION DATED 30/11/2022
ISSUED BY THE PETITIONER TO THE REGISTRAR, THE
MADRAS CHAMBER OF COMMERCE AND INDUSTRIES (MCCI),
WITH COPY TO THE RESPONDENTS IS PRODUCED
Exhibit P3 A TRUE COPY OF THE MCCI FRAMED RULES FOR
ARBITRATION AND CONCILIATION IS PRODUCED
Exhibit P4 A TRUE COPY OF THE COMMUNICATION DATED 13/12/2022
ISSUED BY THE MADRAS CHAMBER OF COMMERCE AND
INDUSTRIES (MCCI) TO THE PARTIES IS PRODUCED
Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED 18/01/2023
ISSUED BY THE ARBITRATOR TO THE PARTIES IS
PRODUCED
Exhibit P6 A TRUE COPY OF THE ORDER DATED 06/03/2023 IN IA
NO.34/2023 IN ARBITRATION CASE
NO.RM/MCCI/677/2022 ISSUED BY THE ARBITRATOR IS
PRODUCED
Exhibit P7 A TRUE COPY OF THE APPLICATION FILED BY THE
PETITIONER IN CMA (ARB) NO.94/2023 IS PRODUCED
Exhibit P8 A TRUE COPY OF THE OBJECTION DATED 11/12/2023 TO
CMA (ARB) NO. 94/2023 OF THE HON'BLE PRINCIPAL
DISTRICT COURT, KOTTAYAM IS PRODUCED
Exhibit P9 A TRUE COPY OF THE ORDER DATED 25/01/2024 PASSED
IN CMA (ARB) NO.94/2023 OF THE HON'BLE PRINCIPAL
DISTRICT COURT, KOTTAYAM IS PRODUCED
