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2019 Supreme(Mad) 1576
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
Ekaa Engineers & Infrastructure Private Limited (Formerly known as "Dithi Infrastructure Private Limited"), Bangalore & Another – Petitioners
Versus
Daimler Financial Services India Private Limited, Chennai – Respondent
O.P. Nos. 564 to 567 of 2018 & Application Nos. 4847, 4850, 4851 & 4852 of 2018
Decided On : 14-02-2019
For the Petitioner:Pawan Jabakh, Advocate.
For the Respondent:D. Pradeep Kumar, Advocate.
Headnote:
Arbitration and Conciliation Act, 1996 - Section 34 - passed by the Arbitral Tribunal - Financial Services India Private Limited - challenge in the instant Ops - applications are dismissed - - Dithi Infrastructure Private Limited is a company incorporated in India and the name was subsequently changed to Ekaa Engineers and Infrastructure Private Limited. For the sake of convenience, this entity shall be referred to as Dithi/Ekaa. Likewise, Vishwas Construction Industries Private Limited is a company incorporated in India and this company shall be referred to as VCPL for the sake of brevity, clarity and convenience. Daimler Financial Services India Private Limited is also a company incorporated in India and the same shall be referred to as Daimler for the sake of brevity, convenience and clarity – Held, Before parting with this case, it may be necessary to set out that Honourable Supreme Court in a recent judgment rendered in State of Bihar V. Bihar Rajya Bhumi Vikas Bank Samiti reported in 2018 9 SCC 472 (in paragraph No.26) has held that Courts dealing with applications to set aside arbitral awards should make every endeavour to adhere to the timeline prescribed under sub-section 6 of Section 34 of A & C Act, which prescribes a timeline for petitions under Section 34 of A & C Act also. This has been reiterated again by Honourable Supreme Court in Emkay Global Financial Services Limited V. Girdhar Sondhi reported - In sum and substance, or in other words, the crux and gravamen of A & C Act is to provide expeditious disposal. In this view of the matter, a case where the petitioners have not taken any effort whatsoever to go before the arbitral tribunal or even write to the arbitral tribunal, but comes before this Court and pleads no notice has been served (when records of arbitral tribunal are summoned and perused, it comes to light that notice has infact been served) may not be a fit case for interference on the ground that learned arbitrator should not have set the petitioners ex parte in the first hearing itself though this might have been a tenable ground under other circumstances. In other words, in cases where an effort is made by the petitioners to go before the arbitrator, the complexion, dyamics and dimensions of applications and judicial intervention qua Section 34 of A & C Act will obviously operate - In such circumstances and in the light of amendments to A & C Act, all aimed at expeditious disposal and speedy disposal qua Alternate Dispute Resolution Mechanisms (ADR Mechanisms for brevity), in the factual matrix of the instant case, I am unable to find that there is sufficient ground for judicial intervention under Section 34 of A & C Act, particularly, in the light of the fact that petitioners have not taken any step in the right direction of going before the arbitral tribunal. In my considered opinion, the petitioners have been completely recalcitrant and nonchalant qua the arbitral proceedings and therefore, they will not be entitled to judicial intervention under Section 34 of A & C Act. Judicial intervention in Section 34 of A & C Act at the instance of such recalcitrant parties will militate against the scheme of A & C Act qua ADR mechanism is my considered view - applications are dismissed
ORDER :
(Prayer: Petition under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the impugned ex parte award dated 20.01.2018 pased by the Arbitral Tribunal.
Petition under Section 34 of the Arbitration and Conciliation Act, 1996 to set aside the impugned ex parte award dated 20.01.2018 pased by the Arbitral Tribunal.)
1. This common order will dispose of these four original petitions which have been filed under Section 34 of 'The Arbitration and Conciliation Act, 1996' (hereinafter referred to as 'A & C Act' for the sake of brevity). 'Original Petitions' shall hereinafter be referred to as OPs for the sake of convenience and clarity. In singular 'Original Petition' shall be referred to as 'OP' for the sake of brevity. To be noted, in the A & C Act proceedings assailing arbitral awards, i.e., term used for a legal proceeding for setting aside an arbitral award is 'application', but the nomenclature used in the Registry is 'Original Petition' (O.P.) for convenience.
2. In all the four OPs, there is a sole petitioner and a lone respondent. In all the four OPs, on behalf of the sole petitioner, counsel on record, Mr.Pawan Jabakh and Mr.D. Pradeep Kumar, counsel on record for the sole respondent are before this Court.
3. All the four OPs arise out of a common factual matrix.
4. The scope of a petition under Section 34 of A & C Act is narrow in contradistinction to an appeal, revision or review, as it is a mere challenge to an arbitral award. In the instant case, the scope is narrower in the light of the trajectory of the hearing today.
5. It is also to be borne in mind that Honourable Supreme Court in Fiza Developers & Inter Trade Private Limited V. AMCI (I) Private Limited and Another reported in 2009 (17) SCC 796 has held that OPs under Section 34 of A & C Act are summary procedures being an extraordinary remedy under an extraordinary provision. In Fiza Developer's principle, Honourable Supreme Court has also held that these are one issue summary procedures. Further to be noted, Fiza Developer's principle was reiterated by Honourable Supreme Court in Emkay Global Financial Services Limited V. Girdhar Sondhi reported in AIR 2018 SC 3894 and held that Fiza Developer's principle is a step in the right direction, more so, for expeditious disposal of OPs under Section 34 of A & C Act.
6. Drawing inspiration from aforesaid pronouncements of Honourable Supreme Court, this Court, in the prefatory part of this common order has held that scope of a OP under Section 34 of A & C Act is very narrow. Be that as it may, as mentioned supra, in the instant case, scope is narrower in the light of the nature of the grounds raised/submissions made.
7. Therefore, it will suffice to give a bird's eye view of facts or in other words, a thumbnail sketch of facts which are essential (sans unnecessary particulars) for appreciating this order. I do so under the caption 'Factual Matrix in a Nut-shell' infra.
8. FACTUAL MATRIX IN A NUT-SHELL:
(a) Subject matter of instant OPs is finance for 29 trucks. To be noted, finance was for 31 trucks in all, but the arbitral awards, which are under challenge in the instant OPs pertain to 29 trucks.
(b) 'Dithi Infrastructure Private Limited' is a company incorporated in India and the name was subsequently changed to 'Ekaa Engineers and Infrastructure Private Limited'. For the sake of convenience, this entity shall be referred to as 'Dithi/Ekaa'. Likewise, 'Vishwas Construction Industries Private Limited' is a company incorporated in India and this company shall be referred to as 'VCPL' for the sake of brevity, clarity and convenience. 'Daimler Financial Services India Private Limited' is also a company incorporated in India and the same shall be referred to as 'Daimler' for the sake of brevity, convenience and clarity.
(c) It is not in dispute that Daimler financed purchase of 29 trucks (hereinafter 'said trucks' for the sake of brevity) by Dithi/Ekaa and VCPL. Finance for 18 of these trucks is covered by a con
