Madras High Court
Tmt.S.Mariyammal vs M/S.Shriram City Union Finance ... on 23 November, 2021
C.R.P.(PD) (MD) No.1806 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.1806 of 2021
and
C.M.P.(MD) No.9699 of 2021
Tmt.S.Mariyammal .. Petitioner
-vs-
1.M/s.Shriram City Union Finance Ltd.,
Rep., by its Authorised Signatory,
No.123, Angappa Naicken Street,
Chennai-1.
Having its Zonal Office at 353/1, 353/2,
AC Complex, 1st Floor,
Near Periyar Statue,
Sekkalai Road, Karaikudi-630 001,
Sivakangai District.
2.Mr.P.Perumal .. Respondents
Prayer :- Petition filed under Article 227 of the Constitution of India to
call for the records related to the impugned docketal return orders passed
by the Principal District Judge, Ramanathapuram dated 17.04.2021 and
28.07.2021 passed in Ar.O.P.Diary Number 1799 of 2021 assigned with
CNR No.TNRM010012392021 and set aside the same and direct the
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C.R.P.(PD) (MD) No.1806 of 2021
Principal District Judge, Ramanathapuram to number the said arbitration
original petition.
For Petitioner : Mr.N.Dilip Kumar
******
ORDER
The petitioner, in a Section 34 petition filed under the provisions
of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as
“the Act” for brevity), is the revision petitioner before this Court.
2.The petitioner seeks a direction from this Court to the Principal
District Judge, Ramanathapuram to number the Arbitration Original
Petition filed by her under Section 34 to set aside the ex-parte award
passed by the Sole Arbitrator.
3.The facts in brief, which are necessary for understanding the
issue on hand, are narrated hereinbelow:-
3.1.The 1st respondent-Finance Company advanced a loan to the
petitioner herein and a Loan Agreement dated 31.01.2015 was
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C.R.P.(PD) (MD) No.1806 of 2021
entered into between the petitioner and the 1st respondent. The 2nd
respondent executed this agreement as a guarantor.
4.It is the case of the 1st respondent that though the petitioner had
received a sum of Rs.5,00,000/- as loan, she had only repaid a sum of
Rs.2,65,675/- leaving a balance of Rs.2,11,075/- as on 20.12.2016. The
petitioner had not cared to repay the above outstanding, despite several
demands made in person and ultimately, a notice dated 18.07.2016 was
issued by the 1st respondent to the petitioner to the address given in the
loan agreement. Notice was also sent to the 2nd respondent. However,
the said notices were not returned either served or unserved. Therefore,
the 1st respondent invoking the Arbitration Clause had initiated
proceedings by appointing a Sole Arbitrator. The Sole Arbitrator, on
entering appearance, had issued notice to the petitioner as well as the 2nd
respondent. However, there was no response to the same and ultimately,
an ex-parte award was passed on 30.07.2019 in and by which, the
petitioner and the 2nd respondent were directed to pay a sum of
Rs.5,24,501/- together with interest at 18% per annum on Rs.4,64,353/-.
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C.R.P.(PD) (MD) No.1806 of 2021
The 1st respondent had, thereafter, filed execution proceedings in E.P.No.
54 of 2020 for executing the said award. Meanwhile, a petition to set
aside the ex-parte award came to be filed by the petitioner herein on
15.04.2021. In the said petition, the petitioner would submit that she had
received no notice either about the initiation of the arbitration
proceedings, or about the award. In fact, she had become aware about
the award and the arbitral proceedings only when she had received notice
in the execution proceedings. This petition was returned on 17.04.2021
by the Principal District Judge, Ramanathapuram stating that the arbitral
award had been passed on 30.07.2019 and as per the provisions of
Section 34(3) of the Act, the time limit for filing the appeal was three
months with a further period of 30 days and the petition filed was much
beyond the time granted under the said provision. The petitioner has re-
presented the said petition once again giving a very detailed explanation
and also submitting judgment in support of her argument on 17.04.2021.
Once again the Principal District Judge had returned the petition on
30.04.2021 with an endorsement that the previous return dated
17.04.2021 still holds good. Thereafter, the return was re-presented on
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C.R.P.(PD) (MD) No.1806 of 2021
16.07.2021. However, the learned Principal District Judge, once again
on 28.07.2021 returned the petition stating as follows:-
“Xerox copy of the award produced along with
the Appeal shows that certified copy of the award is
dispatched to the party. Moreover the Appellant itself
filed the award copy along with petition. That it will
reveals that the copy of award is despatched to the
party. Therefore, the citation referred in petition is
not apply to the facts off the case. The earlier return
dated 17.04.2021 still holds good.”
Challenging the same, the petitioner is before this Court.
5.The learned Principal District Judge, has apparently not
considered the re-presentation made by the learned counsel for the
petitioner on 16.07.2021. It is no doubt correct that the time limit
provided under Section 34 of the Act is three months with a further
window of 30 days. However, the Act clearly provides that the time
would start ticking from the date on which a signed copy of the arbitral
award is delivered to each party as provided under Section 31(5) of the
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C.R.P.(PD) (MD) No.1806 of 2021
Act where such an award has been delivered to the petitioner in time is a
matter that has to be considered at the time of enquiry in the petition.
6.This Court is of the opinion that the Principal District Judge has
totally ignored the contents of the petition wherein, the petitioner has
clearly stated that to date, she has not received a signed copy of the
arbitral award from the Arbitrator. Such a statement is made in para 9 of
the petition to set aside the ex-parte award. The learned Judge has
ignored the dicta laid down in State of Maharashtra and others vs. ARK
Builders Private Limited [(2011) 4 SCC 616], wherein the Hon'ble
Supreme Court has clearly held as follows:-
“17.In the light of the discussions made above
we find the impugned order of the Bombay High
Court unsustainable. The High Court was clearly in
error not correctly following the decision of this
Court in Tecco Trichy Engineers & Contractors and
in taking a contrary view. The High Court
overlooked that what Section 31(5) contemplates is
not merely the delivery of any kind of a copy of the
award but a copy of the award that is duly signed by
the members of the Arbitral Tribunal.”
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C.R.P.(PD) (MD) No.1806 of 2021
7.In the light of the above, the learned Principal District Judge,
Ramanathapuram is directed to number the petition within a period of
two weeks from the date of production of a copy of this order along with
the return petition. Registry is directed return the original papers to the
learned counsel for the petitioner, after receiving due acknowledgement
within a period of one week from the date of receipt of a copy of this
order. The petitioner shall re-present the papers within a period of one
week thereafter. No costs. Consequently, connected miscellaneous
petition is closed.
23.11.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
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C.R.P.(PD) (MD) No.1806 of 2021
P.T.ASHA, J.
abr
To
The Principal District Court,
Ramanathapuram.
C.R.P.(PD) (MD) No.1806 of 2021
Dated: 23.11.2021
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