Madras High Court
P.Rajendran vs K.S.M.Saravanamoorthy on 1 March, 2022
CMA.(MD)No.811 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
CMA(MD)No.811 of 2019
and
CMP(MD)No.10505 of 2019 and
C.M.P(MD) Nos.2824 and 2826 of 2020
1.P.Rajendran
2.Mekala ... Appellants
Vs.
K.S.M.Saravanamoorthy ... Respondent
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of the
Motor Vehicles Act, to set aside the order and decree dated 23.04.2019
passed in Arbitration Appeal O.P.No.12 of 2018 with I.A.No.1 of 2019 by
the Principal District Judge, Tiruchirapalli, confirming the Arbitration Case
No.3 of 2016 by the Arbitrator and allow the present appeal.
For Appellants : Mr.J.Anandhavalli
For Respondent : Mr.K.S.Vamsidhar
1/8
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.811 of 2019
JUDGMENT
The respondent has instituted Arbitration Proceedings before the
appointed Arbitrator in Arbitration Case No.3 of 2016, for recovery of
money due on the registered mortgage deed dated 20.03.2015. The
appellant herein has not appeared before the Arbitrator in the arbitration
proceedings resulted in an ex parte award has passed. Thereafter, it appears
that a legal notice was issued by the respondent on 01.07.2016 and a reply
was issued by the appellants on 19.07.2016 and the claim petition by way
of arbitration was filed on 20.10.2016. Since the appellant herein has not
appeared before the Arbitrator, an ex parte arbitration award was passed on
03.07.2018. Hence, the appellants herein have preferred an appeal in
Aribitration Appeal O.P No.12 of 2018 along with I.A.No.1 of 2019. The
learned Principal District Judge, Trichy, by an order dated 23.04.2019,
dismissed the same. Hence, the present Civil Miscellaneous Appeal.
2.Heard the learned counsel appearing on either side and perused
the materials placed on record.
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CMA.(MD)No.811 of 2019
3.Admittedly, the arbitration award is an ex parte award, but that
is not the reason to interfere with. Additional documents are sought to be
filed by the appellants before the appellate Court. The appellate Court
without assigning any reason has rejected the same. This is the main reason
that has been projected by the learned counsel for the appellants.
4.The learned counsel for the respondent would contend that
Arbitration Appeal OP cannot be equated with regular appeal under Order
41 of CPC and it has to be dealt with separately.
5.After hearing the rival submissions and after going through the
registered mortgage deed, which was filed in the typed set of papers, it is
for a sum of Rs.10,00,000/-, wherein, there is a clause referring the matter
for arbitration. Pursuant to the clause, it appears that the respondent has
issued a legal notice and reply notice. Thereafter, claim petition appears to
have been filed before the Arbitrator and one Advocate has appointed for
the respondent/money lender herein. Both the parties are not institutors,
but they are individual parties. It is also brought to my notice that on
28.06.2016, the appellants herein filed a complaint to the Branch Manager
of the Bank, in which he is having an account, not to permit the respondent
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CMA.(MD)No.811 of 2019
to encash five cheques, which are said to have been given by the appellants
and the legal notice initiating arbitration proceedings seems to have been
emerged from 01.07.2016.
6.Be that as it may, in the reply notice, the appellants herein has
taken a stand that on different date different payment has been made and to
the extent that only five lakhs was paid by the respondent and not Rs.10
lakhs as mentioned in the registered mortgage deed, dated 20.03.2015.
Admittedly, it is a registered document. Parties are bound by the document
subject to Sections 91 and 92 of the Indian Evidence Act. Since the
appellants have not appeared before the Arbitrator, which resulted in
ex part decree.
7.The learned Appellate Authority has considered the merits of
the case and dismissed it. In order to substantiate certain points that has
been raised in the reply notice dated 19.07.2016, additional documents have
been filed by the appellants before the appellate forum. The appellate
forum ought to have entertained the additional documents whether the plea
that was raised in the reply notice dated 19.07.2016 is complied with or not
is subject to reliability and admissibility of those documents. The reason
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CMA.(MD)No.811 of 2019
assigned by the learned Principal District Judge is not based on the sound
principles of law governing the arbitration proceedings. No doubt, it is
true that the arbitration award is ex parte, but still it is open to the defeated
party to make his submission in the appellate Court relying upon the reply
notice, which was issued on 19.07.2016, much before filing of the claim
petition.
8.At this juncture, I find that after issuance of the complaint by
the appellant herein to the Branch Manager on 28.06.2016 regarding five
cheques alleged to have been given by the appellants as a security to the
mortgaged amount as he apprehended it may be misused. Within 3 to 4
days the legal notice for appointment of arbitration, appears to have been
generated. Since I proposed to remand the matter to the Principal District
Judge, Trichy, I have not elaborately dealt with the matter further, leaving it
open to the appellate authority, the learned Principal District Judge, Trichy,
to consider the matter in connection with the additional documents subject
to admissibility and reliability. This court is not expressing any opinion on
the merits of the case. Any observation made in the preceding paragraphs
is for the purpose of disposal of the case, which shall not be construed as
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CMA.(MD)No.811 of 2019
the opinion of this Court in deciding the issue on merits based upon the
additional documents, if any, to be taken on file by the appellate forum.
9.With these observations the order passed in Arbitration appeal
O.P.No.12 of 2018 is set aside and the matter is remitted back to the learned
Principal District Judge, Trichy, for final disposal on merits after
considering the Interlocutory Application in the light of the observation, as
to the admissibility and reliability, after giving an opportunity to the other
side to cross-examine within the scope of the Evidence Act.
10.As against C.M.P(MD) No.2824 of 2020 filed for extension of
time, the learned counsel for the appellants represented that a sum of
Rs.5,00,000/- is paid. However, due to inability, interest for five lakhs was
not paid and the same shall be deposited to Arbitration Appeal OP No.12 of
2018 before the Principal District Judge, Trichy, within a period of four
weeks from the date of receipt of a copy of this order. The Principal
District Judge, Trichy, shall fix the first hearing on satisfying the deposit of
the above said amount and dispose it of within a period of three weeks
thereafter. It is open to the respondent to file appropriate application before
the Appellate Authority to withdraw the amount and the same shall be
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CMA.(MD)No.811 of 2019
considered by the Appellate Authority in accordance with law. Interest
shall be calculated from date of the award till the date of the interim order
passed by this Court.
11.In the result, this Civil Miscellaneous Petition is partly
allowed to the extent as indicated above. Consequently, C.M.P(MD) No.
2824 of 2020 is ordered and C.M.P(MD)Nos.10505 of 2019 and 2826 of
2020 are closed. No costs.
01.03.2022
Index : Yes/No
Internet : Yes/No
cp
To
1.The Principal District Judge,
Tiruchirapalli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA.(MD)No.811 of 2019
RMT.TEEKAA RAMAN,J.,
cp
CMA(MD)No.811 of 2019
and
CMP(MD)Nos.10505 of 2019, 2824
and 2826 of 2020
01.03.2022
https://www.mhc.tn.gov.in/judis
