Madras High Court
Bholu Ram Jat vs Daimler Financial Services India ... on 3 September, 2021
CMA No.2463 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.09.2021
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
CMA No.2463 of 2021
and
CMP No.14112 of 2021
1. Bholu Ram Jat
2. Mahesh Kumar Bhamu ...Appellants
vs.
1. Daimler Financial Services India Pvt. Ltd.,
Rep. by its Authorized representative.
2. K. Mohan,
Sole Arbitrator,
'CNICA', "Orient Chambers",
No.90 (Old No.73), 4th Floor,
North Wing, Armenian Street,
Chennai - 600 001.
...Respondents
Civil Miscellaneous Appeal filed under Section 37 (2) of Arbitration
and Conciliation Act, 1996, to set aside the order dated 19-02-2021 made
in M.P. No.2/2020 in M.P. No.1/2020 in A.C.P. (Daimler) No:251/2020
on the file of the Sole Arbitrator Mr. Mohan, Chennai/ 2nd respondent
herein and allow the present CMA.
For Appellants : Mr. P. Srinivasan
https://www.mhc.tn.gov.in/judis/
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CMA No.2463 of 2021
JUDGMENT
(This case was heard through Video Conferencing)
This appeal has been filed under Section 37 (2) of Arbitration and
Conciliation Act, 1996 challenging the order dated 19.02.2021 passed by
the Arbitral Tribunal under Section 17 of the Arbitration and Conciliation
Act, 1996 in M.P. No.2/2020 in M.P. No.1 of 2020 in A.C.P. (Daimler)
No.251/2020.
Brief facts leading to the filing of this appeal :
2. It is the case of the Appellants that they never borrowed any
money from the first respondent company for the purchase of any vehicle
as alleged in the claim statement filed by the first respondent before the
Arbitral Tribunal. It is their case that only the deceased, son of the first
Appellant by name Rughnath was the borrower and not they.
3. However it is the case of the respondent as seen from the claim
statement filed by them before the Arbitral Tribunal that the Appellants
borrowed money for the purchase of Benz Car under a loan agreement
dated 01.12.2018. According to the first respondent, the Appellants have
committed default in the payment of the instalments under the loan
agreement and therefore, they have initiated arbitral proceedings against
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CMA No.2463 of 2021
the Appellants in ACP (Daimler) No.251 of 2020 seeking recovery of a
sum of Rs.14,62,328/- together with interest and cost from the Appellants.
4. MP No.1 of 2020 was filed by the first respondent in the said
arbitration under Section 17 of the Arbitration and Conciliation Act for re-
possession of the vehicle, which was the subject matter of the loan
agreement dated 01.12.2018 and by order dated 21.08.2020 in MP No.1
of 2020, the sole arbitrator ordered for re-possession of the vehicle.
Thereafter, the appellants filed MP No.2 of 2020 before the sole Arbitrator
seeking to set aside the ex-parte order dated 21.08.2020 passed in MP
No.1 of 2020 on the ground that they are not liable to pay the dues of the
first respondent. It is the case of the appellants that the first appellant is
the son of the borrower who is dead and is not a Class-I Legal Heir.
According to the appellants, the wife and children of the deceased
borrower are alone the Legal Heirs. The second appellant has also
alleged that he is not a guarantor to the transaction and it is the case of the
appellants that all the documents available with the first respondent are all
fabricated documents, which were never signed by either of the appellants.
It is also the case of the appellants that they are permanent residents of
Rajasthan and they never came down to Chennai and executed any
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CMA No.2463 of 2021
agreement as alleged by the first respondent. Under the impugned order
dated 19.02.2021 passed in MP No.2 of 2020 in MP No.1 of 2020 in ACP
No.251 of 2020, the sole arbitrator has dismissed the application filed by
the appellants seeking to set aside the ex-parte order of re-possession of
the vehicle passed by the sole arbitrator on 21.08.2020 in MP No.1 of
2020 in ACP No.251 of 2020 Aggrieved by the same, this appeal has
been filed under Section 37 of the Arbitration and Conciliation Act.
5. Heard Mr.P.Srinivasan, learned counsel for the appellants and
perused the materials and record placed before this Court.
Discussion :
6. Admittedly, the appellants are not interested in the subject
vehicle, which was ordered to be re-possessed by the sole arbitrator under
the interim order dated 21.08.2020 passed under Section 17 of Arbitration
and Conciliation Act in MP No.1 of 2020 in ACP No.251 of 2020, as
according to them, neither the first appellant nor the second appellant, are
the Class – I Legal Heirs of the deceased borrower Rughnath. This being
the stand taken by the appellants, this Court is of the considered view that
insofar as the subject vehicle which has been ordered to be re-possessed is
considered, they cannot claim any right over the same and the order dated
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CMA No.2463 of 2021
21.08.2020 passed in MP No.1 of 2020 in ACP No.251 of 2020 will not
be prejudicial to their interest. Even according to the appellants, the wife
and children of the deceased borrower are alone the Legal Heirs. The said
Legal Heirs are not before this Court. The impugned order passed on
19.02.2021 is an order dismissing the application filed by the appellants
seeking to set aside the ex-parte order dated 21.08.2020 passed by the
learned Arbitrator under Section 17 of the Arbitration and Conciliation Act
in MP No.1 of 2020, wherein, the sole Arbitrator had permitted the first
respondent to re-posses the vehicle, which is the subject matter of the
loan agreement. As observed earlier, the said order no way prejudices
the interests of the appellants as it is their categorical stand that they never
entered into a loan agreement with the first respondent nor did they borrow
any money from the first respondent, nor did they sign any document as
alleged by the first respondent. Further, the Legal Heirs viz., the wife and
children of the deceased borrower are also not before this Court.
Therefore, there is no merit as regards the challenge made by the
appellants with regard to the impugned order dated 19.02.2020 passed by
the learned Arbitral Tribunal in MP No.2 of 2020 in MP No.1 of 2020 in
ACP No.251 of 2020. However, it is made clear that the learned
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CMA No.2463 of 2021
Arbitrator shall consider all the objections that the appellants have raised
before this Court in the main arbitration claim and only thereafter pass an
arbitral award. It is also brought to the notice of this Court by the learned
counsel for the appellants that the appellants have already filed their
counter statement before the arbitral Tribunal raising all their defences,
including the defences raised in the grounds of appeal filed in this appeal.
Therefore, the arbitral Tribunal will have to consider all the said defences
on merits and in accordance with law and only thereafter pass the arbitral
award.
7. In the result, there is no merit in this appeal and it is dismissed
with the aforesaid observations. No costs. Consequently, connected
miscellaneous petition is closed.
03.09.2021
vsi2/ab
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
To
Mr.K. Mohan,
https://www.mhc.tn.gov.in/judis/
CMA No.2463 of 2021
Sole Arbitrator,
'CNICA', "Orient Chambers",
No.90 (Old No.73), 4th Floor,
North Wing, Armenian Street,
Chennai - 600 001.
https://www.mhc.tn.gov.in/judis/
CMA No.2463 of 2021
ABDUL QUDDHOSE, J.
vsi2
CMA No.2463 of 2021
and
CMP No.14112 of 2021
03.09.2021
https://www.mhc.tn.gov.in/judis/
