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2021 Supreme(Mad) 1537

IN THE HIGH COURT OF MADRAS
M. Sundar, J.
A. Ranjith Kumar and Ors. – Appellants
Versus
Cholamandalam Investment & Finance Company Ltd. and Ors. – Respondents
O.P. No. 1125 of 2018 and A. No. 9777 of 2018
Decided On : 24-03-2021

Advocates:
Advocate Appeared:
For the Appellant : P. Jagadeesan

Headnote:

Arbitration and Conciliation Act 1996- Section 34, 2(1)(b),7,34(2)(b)(i) 31(3)-Transfer of Property Act 1882 – Section 92,93,94,96,85,90,99- Code of Civil Procedure 1908- Order 34 , Rule 1 of Order 34-Application for setting aside arbitral award-This part shall apply where the place of arbitration is in India-Arbitration agreement-The subject-matter of the disputes not capable of settlement by arbitration under the law for the law for the time being in force- The arbitral award shall state the reasons upon which it is based-Subrogation-Suits relating to mortgages of immovable property-Parties to suits for foreclosure sale and redemption- Loan Agreement bearing reference 'Loan No. XOHESLM00001665568 under which a loan of Rs. 45,00,000/- is the fulcrum of the lis between the parties; that this loan was disbursed; that the borrower submits that a sum of little over Rs. 36.74 lakhs only was disbursed though Rs. 45,00,000/- was sanctioned; that this loan had to be repaid in 156 installments of Rs. 58,489/- each; that the borrower had mortgaged immovable property in favour of the lender company [this Court is informed that lender company is a 'Non-Banking Financial Company' that this mortgage is a equitable mortgage; that there is an arbitration clause in the said contract being Clause- She has been duly served in captioned OP, but she has not chosen to come before this Court and this Court is informed that second respondent has not chosen to enter appearance through counsel. To be noted, name and full/complete address of the second respondent in captioned OP, as in the short and long cause titles of captioned OP is shown in the cause list, but there is no representation. Therefore, there is no impediment in having the captioned OP heard out on merits by hearing the two contesting learned counsel before this Court-Appeal against the arbitral award- Held, Lack of adequate reasons in the impugned award i.e., reasons upon which it is based, as a ground to dislodge impugned award gets multiplied manifold as the impugned award is an ex parte award- The contents of Ex. C6, which is interestingly described as 'Statements of Outstanding' should have atleast broadly and to the extent necessary for deciding the claim with reasons for accepting the same should have been set out in the impugned award. In this regard, it is made clear that this Court is not venturing into appreciation of Ex. C6 as that would tantamount to re-appreciation of evidence. This Court merely finds that there is no whisper about EMIs paid/not paid, default and as to how the claim has been arrived at in the impugned award and the summation that it is contained in Ex. C6 is no answer/no argument, which has been simply accepted as gospel truth without any discussion or details regarding EMIs- As both the grounds of challenge qua the impugned award made by the petitioners are sustained by this Court, captioned OP is allowed and impugned award is set aside- Apparently, petitioners intended to array the sole Arbitrator as third respondent and subsequently have deleted the learned Arbitrator from the array of parties- To be noted, the prayer in the OP talks about impugned award being made by third respondent, but there is no third respondent in captioned OP- Captioned OP is allowed and impugned award is set aside- There shall be no order as to costs-Captioned OP allowed.

ORDER :

M. Sundar, J.

1. Captioned 'Original Petition' ('OP' for the sake of brevity) is an application under Section 34 of 'The Arbitration and Conciliation Act, 1996 (Act No. 26 of 1996)', which shall hereinafter be referred to as 'A and C Act' for the sake of brevity, assailing an 'arbitral award dated 01.08.2017 bearing reference Arbitration Case No. CIFCL/ARB/LX/1173/2017' (hereinafter 'impugned award' for the sake of brevity and convenience) made by an 'Arbitral Tribunal' ('AT' for the sake of brevity) constituted by a sole Arbitrator.

2. Owing to the short statutory perimeter of Section 34 of A and C Act and the limited legal landscape within which a legal drill of testing an arbitral award should perambulate, short facts shorn of elaboration will suffice.

3. Short facts are that a Loan Agreement bearing reference 'Loan No. XOHESLM00001665568 under which a loan of Rs. 45,00,000/- (Rupees Forty Five Lakhs only) was sanctioned on 30.04.2016' (hereinafter 'said contract' for the sake of brevity) is the fulcrum of the lis between the parties; that this loan was disbursed; that the borrower submits that a sum of little over Rs. 36.74 lakhs (Rs. 36,74,744/- to be precise) only was disbursed though Rs. 45,00,000/- was sanctioned; that this loan had to be repaid in 156 installments of Rs. 58,489/- each; that the borrower had mortgaged immovable property in favour of the lender company [this Court is informed that lender company is a 'Non-Banking Financial Company' ('NBFC for the sake of brevity)]; that this mortgage is a equitable mortgage; that there is an arbitration clause in the said contract being Clause 26; that this Clause 26 of said contract serves as the arbitration agreement between the parties being 'arbitration agreement' within the meaning of Section 2(1)(b) read with Section 7 of A and C Act; that alleging default in repayment, NBFC triggered the arbitration clause and appointed sole Arbitrator who constituted the AT; that AT entered upon reference; that AT issued two notices to the respondents before it, but respondents did not appear; that AT, therefore, made the impugned award on the basis of materials placed before it by the NBFC; that the impugned award, which is an ex-parte award, has now been challenged by Respondents 1, 2 and 4 before AT; that Respondents 1, 2 and 4 before AT are petitioners 1, 2 and 3 respectively in captioned OP; that NBFC, which was the lone claimant before AT is the first respondent in captioned OP; that Respondent No. 3 before AT (this Court is informed that Respondent No. 3 before AT is the mother of Respondent No. 1 before AT) has been arrayed as Respondent No. 2 in captioned OP; that captioned OP was heard out.

4. Mr. P. Jagadeesan, learned counsel on record for three petitioners and Ms. R. Balambigai Gowri, learned counsel on record for contesting first respondent (NBFC), (which was claimant before AT) are before this virtual Court. Respondent No. 3 before AT (mother of first petitioner in captioned OP) has been arrayed as second respondent in captioned OP, she has been duly served in captioned OP, but she has not chosen to come before this Court and this Court is informed that second respondent has not chosen to enter appearance through counsel. To be noted, name and full/complete address of the second respondent in captioned OP, as in the short and long cause titles of captioned OP is shown in the cause list, but there is no representation. Therefore, there is no impediment in having the captioned OP heard out on merits by hearing the two contesting learned counsel before this Court.

5. AT has made the impugned award against the respondents before it (three petitioners and second respondent in captioned OP) awarding a sum of Rs. 47,44,016.09/- [Rupees Forty Seven Lakh(s) Forty Four Thousand Sixteen And Paise Nine only] with interest at the rate of 18% per annum from 28.03.2017 till the date of realization and more importantly, AT has made the impugned award in favour of the claimant N

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