Jothimalar Kuppusamy vs M/S.Nissan Renault Financial ...
2023 Latest Caselaw 9153 Mad

                                                                             Arb.O.P.(Com.Div.) No.369 of 2022

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 27.07.2023

                                                              CORAM

                                    THE HON'BLE Mr. JUSTICE ABDUL QUDDHOSE

                                              Arb.O.P (Com.Div.) No.369 of 2022


                     Jothimalar Kuppusamy                                            ... Petitioner

                                                              Versus

                     1.M/s.Nissan Renault Financial Services India Pvt. Ltd.,
                       rep. by its Authorised Signatory
                       Kasi Viswanathan

                     2.C.Saifullah                                                   ... Respondents

                     Prayer: Arbitration Original Petition (Commercial Division) filed under
                     Section 34(2)(6)(ii) of the Arbitration and Conciliation Act, 1996 to set
                     aside the Award dated 08.04.2022 passed by the Arbitral Tribunal.
                                        For Petitioner      : Mr.S.Patrick

                                        For Respondents : Mr.N.Prakash

                                                              ORDER

This petition has been filed under Section 34 of the Arbitration and

Conciliation Act challenging the Arbitral Award dated 08.04.2022.

https://www.mhc.tn.gov.in/judis Arb.O.P.(Com.Div.) No.369 of 2022

2.The petitioner seems to have availed loan from the first respondent

based on a loan agreement dated 12.05.2020. In terms of the Arbitration

Clause contained in the Loan Agreement dated 12.05.2020, the Arbitration

was initiated by the first respondent against the petitioner, which culminated

in passing of the impugned Arbitral Award dated 08.04.2022.

3.The petitioner has challenged the impugned Arbitral Award

primarily on the ground that the first respondent has unilaterally appointed

an Arbitrator, which is in violation of the recent decision of the Hon'ble

Supreme Court in the case of Perkins Eastman Architects DPC and

another vs. HSCC (India) Limited reported in (2020) 20 SCC 760. In the

said decision, the Hon'ble Supreme Court has held that a party to the dispute

cannot unilaterally appoint an Arbitrator.

4.In the instant case, as seen from the Arbitral Award dated

08.04.2022, which is the subject matter of challenge in this petition, the first

respondent has unilaterally appointed the second respondent as an

Arbitrator. The first respondent is a party to the dispute and is interested in

https://www.mhc.tn.gov.in/judis Arb.O.P.(Com.Div.) No.369 of 2022

the outcome of the Arbitration. Being an unilateral appointment, the decision

rendered by the Hon'ble Supreme Court in Perkins judgment, referred to

supra, squarely applies and therefore, the Arbitral Award dated 08.04.2022

is per se illegal and it has to be set aside.

5.For the foregoing reasons, the impugned Arbitral Award dated

08.04.2022 passed by the second respondent/Arbitrator against the

petitioner is hereby set aside and this petition is allowed as prayed for.

6.Liberty is granted to both the parties to initiate fresh Arbitration in

accordance with law. No costs.

27.07.2023 vga Index:Yes/No Speaking/Non-speaking orders

https://www.mhc.tn.gov.in/judis Arb.O.P.(Com.Div.) No.369 of 2022

ABDUL QUDDHOSE, J.

vga

Arb.O.P (Com.Div.) No.369 of 2022

27.07.2023

https://www.mhc.tn.gov.in/judis