In the Court of the Learned City Civil Court,
Calcutta
Before the Learned Chief Judge
2 & 3, Kiran Shankar Roy Road,
Kolkata - 700001
Misc.
Appeal (Arbitration) no. of 2024;
In
the matter of ;
An
application under Section 34 (4) of the Arbitration and Conciliation Act, 1996,
for stay on impugned arbitral award dated 2nd September’ 2024,
passed in Agreement No. TCFCE0543000010676678, dated 29.10.2019, by the Learned
Sole Arbitrator Advocate Kaushik Banerjee, having office at Premises being No.
6, Old Post Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as
“NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata –
700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower;
AND
In
the matter of ;
Sambhu
Mondal, _______Petitioner
-
Versus –
Tata
Capital Finance Services Limited, and Others;
_______Opposite
Parties
The
humble petition of the above named Petitioner most respectfully;
Sheweth as under;
1.
That Being aggrieved by and
dissatisfied with Impugned arbitral award dated 2nd September’ 2024,
passed in Agreement No. TCFCE0543000010676678, dated 29.10.2019, by the Learned
Sole Arbitrator Advocate Kaushik Banerjee, having office at Premises being No.
6, Old Post Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as
“NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata –
700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower, the petitioner
placed the application under Section 34 of the Arbitration and Conciliation
Act, 1996, before the Learned Court.
Photostat
copy of the impugned arbitral award dated 2nd September’ 2024,
passed in Agreement No. TCFCE0543000010676678, dated 29.10.2019, by the Learned
Sole Arbitrator Advocate Kaushik Banerjee, having office at Premises being No.
6, Old Post Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as
“NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata –
700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower, with Postal
Envelop and the Track Report, are annexed herewith and marked as Annexure –
“A”.
2.
That the Petitioner obtained a
financial facility from the opposite party no. 1, namely Tata Capital Finance
Services Limited, for purchasing one Komatsu India Private Limited – CEQ, Model
PC 71, bearing Engine No. N221578, and Machine Serial No. N221578, vide
Agreement No. TCFCE0543000010676678, dated 29-10-2019, for a sum of Rs.
25,88,214/- (Rupees Twenty Five Lakhs Eighty Eight Thousand and Two Hundred
Fortin) only, at the terms of repayment by way of 45 (Forty Five) monthly
installments of Rs. 69,150/- from 1st to 45th
installments be payable by the petitioner being borrower to the opposite party
no. 1, Lender/ Financer.
3.
That the Opposite Party no. 1, namely
Tata Capital Finance Services Limited, is carrying the business of Finance on
Vehicles and other allied services. The Petitioner obtained the financial
assistance from the Opposite Party no. 1, herein under the Agreement No.
TCFCE0543000010676678, dated 29-10-2019, for a sum of Rs. 25,88,214/- (Rupees
Twenty Five Lakhs Eighty Eight Thousand and Two Hundred Fortin) only. The
Opposite Party no. 2, is a Guarantor, who favouring the Petitioner in obtaining
such financial facility from the Opposite Party no. 1, herein. The Opposite
Party no. 3 herein is a Sole Arbitrator, who passed the impugned Arbitral Award
dated 2nd September’ 2024, in Agreement No. TCFCE0543000010676678,
dated 29.10.2019, and communicated the said award through Registered Post being
RW156452494IN, booked on 10-09-2024, and Delivered on 12-09-2024, to the
Borrower.
4.
That the Opposite Party no. 1, namely
Tata Capital Finance Services Limited, did not give any copy of the said
Agreement No. TCFCE0543000010676678, dated 29.10.2019, to the Petitioner on any
occasion as well as the Sole Arbitrator did not take any recourses to serve a
copy of the said agreement to the petitioner on any occasion, therefore the
petitioner is not in any knowledge about the purports and contents of the said
alleged agreement being Agreement No. TCFCE0543000010676678, dated 29.10.2019.
5.
That the commencement of the
Arbitration proceeding before the Learned Sole Arbitrator has never been communicated
to the Petitioner. The Petitioner did not have any knowledge about the
arbitration proceeding initiated ever by the Opposite Party no. 1, herein. The
Petitioner came into knowledge about the said purported Arbitration proceeding
only on receipt of the Arbitral Award dated 2nd September’ 2024, in
Agreement No. TCFCE0543000010676678, dated 29.10.2019, served by the Opposite
Party no. 3, herein being the Sole Arbitrator, which communicated the said
award through Registered Post being RW156452494IN, booked on 10-09-2024, and
Delivered on 12-09-2024, to the Borrower.
6.
That the said Arbitral Award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, did
not give any particulars and the manner by which the claim has ever been
communicated to the petitioner, and the petitioner has ever been asked to
participate in the said arbitration proceeding before the Sole Arbitrator
Kaushik Banerjee, Advocate. The contents in paragraph no. 4, at page no. 4, as
“Notices of the arbitration proceedings were sent by me to their respective
last known address of the respondents by “Registered Post”. I am satisfied that
the respondents duly received and/ or have due knowledge of the notices issued
by me calling upon them to enter appearance in the reference and to file their
pleadings”. Such satisfaction in believing that the petitioner have knowledge
about the arbitration proceeding without furnishing the particulars of the said
alleged Registered Post ever given in his contention so far in the Arbitral
Award dated 2nd September’ 2024, in Agreement No.
TCFCE0543000010676678, dated 29.10.2019, is not sustainable and bad in law.
7.
That the Petitioner has obliged in
making his repayment by way of installments to the Opposite party no. 1, herein
regularly; But as the pandemic COVID-19, commenced in the month of March’ 2020
and taken a substantial period in restoration of normal life in the Country,
the petitioner suffered with remarkable financial un-sustainability, therefore
the petitioner failed to pay on some of the occasion, however the Petitioner
lastly paid on 07/12/2022, the installment money as Rs. 69,150/- (Rupees Sixty
Nine Thousand and One Hundred Fifty) only. Thus it has been seen that during
the alleged arbitration proceedings which commenced on 13/06/2022, several
installments has been paid by the petitioner, which has never been considered
or accommodated with the alleged claim of the Opposite Party no. 1, herein.
Therefore such bias in favouring the opposite party no.1, herein by the said
sole arbitrator is not sustainable and bad in law.
Photostat
copy of the Loan statement is annexed herewith and marked as Annexure – “B”.
8.
That the transactions particulars has
not been discussed or given in the said Arbitral Award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which ever surfaced by and between the Claimant and the respondents, therefore
the said arbitral award is not sustainable and bad in law.
9.
That the purported alleged Letter of
Termination dated 21.07.2021, as contended in the Arbitral Award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, has
never served on the petitioner by the opposite party no.1, herein. Such
termination cannot take any effect unilaterally. Moreover, the Opposite Party
no.1, herein waived such termination or any cause thereof while the Opposite
Party accepted the payment of the installments from the petitioner.
10.
That the particulars of the payment
made by the petitioner and the particulars of the dues, overdue, etc., has not
been discussed ever to enrich any logical conclusion in the said Arbitral Award
dated 2nd September’ 2024, in Agreement No. TCFCE0543000010676678,
dated 29.10.2019, therefore the said arbitral award is not sustainable and bad
in law.
11.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, the
said Sole Arbitrator did not state about the sufficient services on the
Petitioner. Thus service has never been done on the petitioner. Without
pursuing the satisfaction of service of the notices, on the Petitioner, the
said Sole Arbitrator proceeded with the alleged arbitration proceeding
favouring the Opposite Party number 1, herein without holding ex-parte against
the petitioner. The Petitioner is not in receipt of notice about the alleged
arbitration.
12.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which states as the Claimant Learned Advocate led the Sole Arbitrator through
the pleadings and all documents, filed on behalf of the claimant; But the
Learned Arbitrator did not states that what are those documents, and the
contents of the pleadings has ever been placed by the claimant and the same has
been considered by the arbitrator in deciding the matter before him.
13.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which did not states the facts of the financial availability of the petitioner,
and subsequently did not give any calculation of the interest accrued thereon
and the adjustment of the payment made by the petitioner to the claimant.
14.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which did not refer any clause under the said Loan Agreement no.
TCFCE0543000010676678, dated 29.10.2019, by which the arbitration proceeding
has ever been initiated by the said Sole Arbitrator.
15.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which did not speak about invoking of any particular contents, purports, and
clause of the said Loan Agreement no. TCFCE0543000010676678, dated 29.10.2019,
by which the arbitration proceeding has ever been initiated by the said Sole
Arbitrator.
16.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which did not speak about declaration of NPA of the said Loan Agreement No. TCFCE0543000010676678,
dated 29.10.2019, by which the arbitration proceeding has ever been initiated
by the said Sole Arbitrator.
17.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019,
which did not speak about the determination or termination at premature stage
of the said Loan Agreement No. TCFCE0543000010676678, dated 29.10.2019, by
which the arbitration proceeding has ever been initiated by the said Sole
Arbitrator.
18.
That the said impugned arbitral award dated
2nd September’ 2024, in Agreement No. TCFCE0543000010676678, dated
29.10.2019, which did not speak about the payment made by the petitioner during
the arbitration proceeding to the claimant; Persistently, the entire
arbitration proceeding has been initiated, proceeded, and concluded, keeping in
dark the petitioner, herein.
19.
That the Opposite Party no. 1, and the
Opposite Party number 3, herein, take much care in not providing any
information of the arbitration proceeding to the petitioner, on occasion prior
to the 12th September’ 2024.
20.
That the said impugned award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, did
not afford the reasonable opportunity of hearing to the petitioner, as the same
has been persuaded by the Sole Arbitrator appointed by the Claimant.
21.
That the impugned arbitral award dated
2nd September’ 2024, in Agreement No. TCFCE0543000010676678, dated
29.10.2019, by the Learned Sole Arbitrator Advocate Kaushik Banerjee, having
office at Premises being No. 6, Old Post Office Street, Top Floor, Room No. 10,
Kolkata - 700001, as well as “NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th
Floor, Koolkata – 700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com,
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower, which determined
that the Petitioner and the Opposite Party no. 2, herein jointly and severally,
will pay to the Claimant, a sum of Rs. 12,75,000/- with interest thereon @ 9.95
% on and from 09-02-2022, till realization. The said Award dated 2nd
September’ 2024, declared that the claimant namely Tata Capital Financial
Services Limited is the owner of One Komatsu India Private Limited – CEQ, Model
PC 71 Bearing Engine No. N221578 and Machine Serial No. N221578, along with its
accessories thereon and is entitled to the possession thereof. The said award
signed and delivered on the 2nd September’ 2024, at Kolkata, by the
Learned Sole Arbitrator Advocate Kaushik Banerjee.
22.
That the Petitioner states and submits
that the very commencement of the said Arbitration proceeding requires that a
notice has to be served by invoking Arbitration since the Arbitration
presupposes existence of disputes and the disputes means assertion of right of
a party followed by denial. It has been repeatedly urged by the petitioner that
no notice has ever been served by the opposite party number 1, herein. The opposite
party number 1, herein never served any notice invoking for the arbitration,
did never serve a copy of Claim and did never informing the selection of the
opposite party number 3, as a sole arbitrator. Thus it is a clear case of there
being lack of consenciousadidem between parties in absence the Arbitration
cannot be proceeded with as there is no invocation.
23.
That the Petitioner states and submits
that as it appears from the said impugned arbitral award dated 28th
March’ 2023, that without any proof of services of the notices on the
petitioner, the arbitration proceeding has been initiated, proceeded, and
concluded.
24.
That the Petitioner states and submits
that as it appears from the said impugned arbitral award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, that
without any disclosure of document, and the pleading, the said arbitration
proceeding has been proceeded and subsequently concluded at the behest of the
claimant, presumably.
25.
That the Petitioner states and submits
that as it appears from the said impugned arbitral award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, which
did not speak about the determination or termination at premature stage of the
said Loan Agreement No. TCFCE0543000010676678, dated 29.10.2019, by which the
arbitration proceeding has ever been initiated by the said Sole Arbitrator.
26.
That the Petitioner states and submits
that as it appears from the said impugned arbitral award dated 2nd
September’ 2024, in Agreement No. TCFCE0543000010676678, dated 29.10.2019, which
did not speak about the payment made by the petitioner during the arbitration
proceeding to the claimant; Persistently, the entire arbitration proceeding has
been initiated, proceeded, and concluded, keeping in dark the petitioner,
herein.
27.
That in the given facts, your
petitioner reasonably apprehends that the opposite party number 1, may take
possession of vehicle at any time, therefore the petitioner genuinely seeks
stay on impugned arbitral award dated 2nd September’ 2024, passed in
Agreement No. TCFCE0543000010676678, dated 29.10.2019, by the Learned Sole
Arbitrator Advocate Kaushik Banerjee, having office at Premises being No. 6,
Old Post Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as
“NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata –
700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower.
28.
That unless the Learned Court grant
stay on impugned arbitral award dated 2nd September’ 2024, passed in
Agreement No. TCFCE0543000010676678, dated 29.10.2019, by the Learned Sole
Arbitrator Advocate Kaushik Banerjee, having office at Premises being No. 6,
Old Post Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as
“NICCO HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata –
700001, Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower, till disposal of
the application under Section 34 of the Arbitration and Conciliation Act, 1996,
your petitioner will highly prejudice and suffer with irreparable loss and injury,
thereof.
29.
That the preponderance of balance of
convenience and inconvenience are in favour of the Petitioner and the Opposite
Parties will not prejudice.
30.
This application is made bonafide and
for the ends of justice.
It is therefore prayed that your Honour
would graciously be pleased to stay on the impugned arbitral
award dated 2nd September’ 2024, passed in Agreement No.
TCFCE0543000010676678, dated 29.10.2019, by the Learned Sole Arbitrator
Advocate Kaushik Banerjee, having office at Premises being No. 6, Old Post
Office Street, Top Floor, Room No. 10, Kolkata - 700001, as well as “NICCO
HOUSE”, 2, Hare Street, Room No. 20, 6th Floor, Koolkata – 700001,
Mobile : 9874951977 / 9748310956, Email : kaushikbanerjee04@yahoo.com
which has been communicated through Registered Post being RW156452494IN, booked
on 10-09-2024, and Delivered on 12-09-2024, to the Borrower, from
giving any effect or further effect and or interfering with the possession of
the Vehicle of the petitioner, in any manner whatsoever, till the disposal of
the present application under Section 34 of the Arbitration and Conciliation
Act, 1996; And to pass such other or further order or orders as to your Honour
may deem, fit, and proper for the end of justice.
And for this act of kindness, the
Appellant, as in duty bound shall ever pray.
AFFIDAVIT
I, Sambhu Mondal,
Son of _______, aged about ______years, by faith Hindu, by Occupation Business,
residing at Village – Shaliyada, Post Office - Amarkanan, Police Station -
Gangajalghati, District - Bankura, Pin Code – 722133, West Bengal, do
hereby solemnly affirm and say as follows:
1. That I am the Petitioner in the present application under
Section 34 of the Arbitration and Conciliation Act, 1996 and I am well
acquainted with the facts and circumstances of the case. I am competent to
swear this affidavit.
2.
That the statements made in paragraph
No. 1, 2, 3, 4, 5, & 7, are true to my knowledge and those made in paragraphs 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 24, 25, & 26, are true to my information derived from
the records of the case and rest paragraphs are my respectful submission before
this Learned Court.
Prepared in my office The deponent is
known to me
Advocate Clerk to: Mr. Advocate
Solemnly affirmed before me
on this the day of December, 2024.
I
certify that all annexures
are
legible.
Advocate.
NOTARY
very useful
ReplyDelete