Madras High Court
Kamlesh Rathnam vs Kotak Mahindra Prime Ltd on 24 June, 2021
O.P.No.664 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24/6/2021
CORAM
THE HONOURABLE Mr.JUSTICE N.SATHISH KUMAR
O.P.No.664 of 2019
1. Kamlesh Rathnam
2. R.Sujatha (Deveased)
3. Pamusa
rep. By its Proprietor
Kamleshrathnam Rathnam
4/503 I Floor
4th South Main Road
Sri Kapaleeswarar Nagar
Neelankarai
Chennai 600 115. ... Petitioners
Vs
1. Kotak Mahindra Prime Ltd
rep. By its Authorised Signatory
Mr.Gaurav Chodia
II Floor, Ceebros Centre
No.45 Montieth Road
Egmore
Chennai 600 008.
1/7
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O.P.No.664 of 2019
2. L. Dinagaran
Sole Arbitrator
Swamy Associates
Sai Nivas, Flar 3 C, 173
R.A.Complex Thendral
Arcot Road, Palaniappa Nagar
Valasaravakkam
Chennai 600 087. ... Respondents
Original Petition has been filed 34 (3) of the Arbitration and
Conciliation Act, 1996, to set aside the Award dated 31/8/2018 in Claim
Petition No.LDG 623 of 2017 and served on the petitioner on 11/9/2018
made by the second respondent in the dispute between the petitioner and
first respondent as illegal, without jurisdiction.
For petitioner ... Mr.K.M.Ramesh
For respondents ... Mr.K.Arun Pradeesh
for
M/s. AAV Partners
------
ORDER
This Original Petition has been filed to set aside the Award, dated
31/8/2018, in Claim Petition No.LDG 623 of 2017.
2. Heard Mr.K.M.Ramesh, learned counsel for the petitioner and
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O.P.No.664 of 2019
Mr.K.Arun Pradeesh for M/s. AAV Partners for the respondents.
3. Though several grounds have been raised, learned counsel
appearing for the petitioner challenged the award only on the ground that
the Arbitrator appointed by the first respondent cannot be permitted by law,
which gave rise to the justifiable doubts as to his independence or
impartiality. Therefore, as per the dictum laid down by the Hon'ble Apex
Court in PERKINS EASTMAN ATCHITECTS DPC AND ANOTHER Vs.
HSCC (INDIA) LTD (2019 SCC ONLINE SC 1517), award has to be set
aside. As far as the other facts are concerned, learned counsel fairly
submitted that he has no case.
4. Impugned Award has been passed on 31/8/2018 by the sole
arbitrator. On a perusal of the award, passed by the learned Arbitrator,
notice has been duly served on the petitioner and has been set ex parte,
despite several adjournments. Even though the petitioner had filed an
application to set aside the ex parte order, the same has not been prosecuted.
Therefore, learned Arbitrator proceeded to pass an award, on the basis of
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O.P.No.664 of 2019
materials available on record.
5. The main grievance of the applicant is that Statement of Accounts
is not properly maintained and some of the amount paid by them has not
been given credit to. The fact remains that impartiality or disqualification
of the Arbitrator has not been challenged nor objected by the first
respondent at any point of time. As per Section 13 of the Act, having
appeared before the Arbitrator and took several adjournments, he has not
challenged the appointment of Arbitrator, within fifteen days, after
becoming aware of the constitution of the arbitral tribunal and no whisper
was also made in this regard by the first respondent and he took several
adjournments in this matter and the first respondent was set ex parte.
Therefore, this Court is of the view that when there were ample
opportunities to the petitioner to challenge the very appointment of an
Arbitrator, having slept over all these days, and having admitted the liability
except claiming certain credit, now the award cannot be set aside, merely on
the ground raised on the basis of judgment of the Hon'ble Apex Court, cited
supra.
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O.P.No.664 of 2019
6. In fact, the Arbitrator has considered the document which has not
been disputed seriously by the petitioner herein. In fact, even before the
settlement, some payments have been made by him to the tune of Rs.6 lakhs
which has been given credit to. Conditional order passed by this Court to
deposit the amount while granting interim order also not complied with. In
such a view of the matter, this Court do not find any merit in this Original
Petition.
7. Accordingly this Original Petition is dismissed.
24/6/2021
mvs.
https://www.mhc.tn.gov.in/judis/
O.P.No.664 of 2019
N.SATHISH KUMAR,J
mvs.
O.P.No.664 of 2019
24/6/2021
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O.P.No.664 of 2019
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