IN THE COURT OF THE LD. 1ST
ADDL. CIVIL JUDGE (JR. DIV.) AT ALIPORE
Title
Suit No. 2007 of 2025
EKRAMUL
MOLLA
…
Plaintiff
-Versus-
CHOLAMANDALAM
INVESTMENT AND FINANCE COMPANY LIMITED
… Defendant
APPLICATION UNDER
SECTION 5 & 8 OF THE ARBITRATION AND CONCILIATION ACT, 1996 ON BEHALF OF
THE DEFENDANT
The
humble petition on behalf of the
defendant abovenamed –
MOST RESPECTFULLY
SHEWETH:
1.
This is an application for dismissal
and/or permanent stay of Title Suit No. 2007 of 2025 in accordance with the
provisions of Section 5 and 8 of the Arbitration and Conciliation Act, 1996.
2.
The plaintiff approached the defendant
company and appliedfor Business Loan sometime in the month of August, 2025.
3.
After negotiations and being satisfied
with the financial credentials of the plaintiff, the defendant agreed to grant
loan to the tune of Rs.758,178/- and under Business
LoanAgreement No. BLTLKOLK000010979597dated 23-Aug-2025. The said loan
amount was to be repaid alongwith interestand charges as per terms and
conditions stipulated in
the agreement. Certified Copy of the said agreement is annexed
herewith and collectively marked as Annexure-“A”.
4.
Clause
26
ofLoanagreement no BLTLKOLK000010979597contain
Arbitration clause that run thus:
(a) All disputes,
differences and/or claims, arising out of this Agreement, whether during its
subsistence or thereafter, shall be settled by arbitration in accordance with
the provisions of the Arbitration and Conciliation Act, 1996 (“the Act”) or any
statutory amendments thereof, notified prior to the reference of dispute to
arbitration, and shall be referred by the initiator of such dispute to anyone
of the following neutral arbitration institutions (hereinafter referred to as
the “Arbitration Institution”) seeking appointment of an arbitrator to resolve
such disputes, differences and/or claims:
(i) Presolv360, an
online dispute redressal platform/institution, presently run by Edgecraft
Solutions Private Limited, currently having its office at 3rd Floor, Churchgate
House, 32, Veer Nariman Road, Fort, Mumbai- 400 023 (and any subsequent changes
thereto). (or)
(ii) ADReS Now, an
online dispute redressal platform/institution, presently run by ADR e-
Sarvantra Private Limited, currently having its office at 63, Palace Road,
Vasanthnagar, Bangalore – 560 052 (and any subsequent changes thereto). (or)
(iii) Council for
Indian and International Arbitration, a Trust having its office at No. 6,
M.T.H. Road, DABC Complex 3rd Floor, Villivakkam, Chennai – 600 049.(and any
subsequent changes thereto).
The Arbitration
Institution shall refer the disputes, differences and/or claims to an
arbitrator. The appointment of the arbitrator by Arbitration Institution shall
be considered as a joint appointment by mutual consent of all the parties to
this Agreement. The award given by such arbitrator shall be final
and binding on all
parties to this Agreement.
(b) The Arbitration
Institution shall appoint a substitute arbitrator in place of the appointed
arbitrator in the following events:
(i) death of the
appointed arbitrator; or
(ii) where the
appointed arbitrator is unable or unwilling to act as arbitrator for any reason
whatsoever.
(c) The place of
arbitration proceedings shall be Chennai or Kolkata. The Courts at Chennai or
Kolkata shall have the exclusive jurisdiction to try & entertain all
disputes and differences and/or claims,arising out of or under this Agreement.
The language of arbitral proceedings shall be English.
(d) Administrative
assistance to the arbitrator to facilitate the conduct of the arbitral proceedings,
ifrequired, may be provided by the Arbitration Institution.
(e) The parties
hereby consent to have the arbitral proceeding conducted by a submission of
written pleadings/submissions, documents in physical and/or any other
electronic/virtual mode (through exchange of post, e-mail and/or any other mode
of electronic communication including video conference(VC), online, virtual
hearing etc., using an external application or platform, if necessary) or a
combination thereof as may be determined by the arbitrator, whose decision
shall be final and binding on the parties.
(f) The arbitrator
shall send a copy of the award/interim award/order so passed by him/her and
duly certified by him/her through post/courier or a scanned image of such award
or electronically/digitally signed award to the parties through e-mail or any
other electronic mode either on his own or through the Arbitration Institution,
as he/she deems fit, which shall be considered as a signed copy for the
purposes of the Act.
(g) The postal/e-mail
and/or any other electronic mode of address provided by the Borrower(s)/
Guarantor(s) to the Company under the Agreement or any other document
executed/shared by Borrower(s) / Guarantor(s) with the Company shall be deemed
to be an active postal/e-mail and/or any
other electronic mode
of address and any service effectuated upon such active postal/e-mail and/or
any other electronic mode of address shall be deemed to be completed. Any
change or other discrepancies in the postal/e-mail and/or any other electronic
mode of address provided above, shall be informed to theCompany promptly.
5.
A perusal
of the plaint and the reliefs sought for therein will demonstrate that the
plaint and petition has been filed for reliefs, which are squarely within the
scope and ambit of the agreement of arbitration clause contained in the said
agreement.
6.
In view of
the arbitration clause contained in the agreement, the parties have agreed to
refer all disputes and differences arising out of and in connection with the
agreement of arbitration and the said loan, forming the main subject matter of
the said agreement was very much the subject matter of arbitration.
7.
The
subject matter of the instant suit filed by the plaintiff is completely covered
by and falls within the scope of the Arbitration & Conciliation Act, 1996
(hereinafter referred to as the “said Act”). The entire gamut of issues raised
by the plaintiff in the instant suit and that of the rights obligations and
liabilities of the respective parties to the said agreement and in connection
with the said loan forming the subject matter thereof are to be governed
strictly by the provisions of the said Act and as such the instant suit is
accordingly bad in law.
8.
Having
executed and acted upon the said agreement by accepting payment the plaintiff
has admitted the existence of the arbitration agreement and the adjudication of
the disputes through arbitration.
9.
The
defendant states that the very action on the part of the plaintiff in
unilaterally purporting to circumvent the arbitration agreement by filing the
instant suit is malafide and is abuse of process of law. The suit has been
filed on suppression of material facts and circumstances.
10.
The suit
is vexatious, meritless and does not make out a right to sue and as such the
plaintiff is not entitled to any order of injunction.
11.
The
parties had been ad idem that all disputes, differences, and/or claims by and
between the parties would be resolved by arbitration. The arbitration agreement
is a valid, binding and enforceable arbitration agreement within the meaning of
Section 2(1)(b) read with Section 7 and 10 of the said Act.
12.
By
entering into the said agreement containing arbitration clause the plaintiff
had led the petitioner to believe that the domestic forum agreed upon would
resolve all disputes between the parties. The petitioner believed in and relied
on the representations made and assurances held out by the plaintiff in this
regard and acted on the basis thereof. The plaintiff’s move in initiating the
civil action is derogation to the agreement containing arbitration clause is
barred by estoppel and/or waiver.
13.
The said
Act is a consolidating and amending Act encompassing the entire law of
arbitration and lays down the entire procedure governing action by the parties
in connection with matters, which are the subject matter of an agreement
containing arbitration clause.
14.
Section 5
of the said Act, bars intervention by any judicial authority in any matter in
connection with domestic arbitration, except as may be provided in the said
Act. The said Title Suit No. 2007 of 2025 is accordingly barred by virtue of
the provisions of Section 5 of the said Act.
15.
The
defendant states that the present suit is liable to be permanently stayed
and/or dismissed and/or referred to Arbitration and the orders passed therein
are liable to be vacated, inter alia, for the following amongst other reasons:
a)
The suit
being Title Suit No. 2007 of 2025 has been filed in total and absolute
suppression of the arbitration agreement in nature of clause contained in the
said agreement.
b)
The
subject matter and/or substance of the suit and the reliefs prayed for therein
are squarely within the scope and ambit of the arbitration clause contained in
the said agreement and consequently the present suit could not have been
instituted by circumventing, bypassing and/or ignoring the agreement of
arbitration.
c)
Section 5
of the Arbitration and Conciliation Act, 1996 is a bar to the institution of
any suit in respect of matterswhich are governed by agreement of arbitration.
Section 5 of the Arbitration and Conciliation Act, 1996, inter alia, provides
as follows:
“Extent of Judicial Intervention – Notwithstanding
anything contained in any other law for the time being in force, in matters
governed by this part, no judicial authority shall intervene except where so
provided in this Part.”
d)
Section 8
of the Arbitration and Conciliation Act, 1996 contains a mandatory provision to
the effect that if a proceeding is instituted before a judicial authority in
respect of which there is in existence an agreement of arbitration, then such
judicial authority will refer the parties to arbitration. Section 8 of the
Arbitration and Conciliation Act, 1996,
inter alia, provides as follows :
“Power to refer parties to arbitration where there
is an arbitration agreement–
(1)
A judicial
authority before which an action is brought in a matter which is the subject of
an arbitration agreement shall, if a party so applies not later than when
submitting his first statement on the substance on the dispute, refer the
parties to arbitration.
(2)
The
application referred to in sub-section (i) shall not be entertained unless, it
is accompanied by the original arbitration agreement or a duly certified copy
thereof.
(3)
Notwithstanding
that an application has been made under sub-section (i) and that the issue is
pending before the judicial authority, an arbitration may be commenced or
continued and an arbitral award made.”
e) The
substance and/or subject matter of the present suit directly concerns the said
agreement. Having agreed to refer to arbitration all disputes arising out of
and/or in connection with the said loan agreement and therefore, the plaintiff
cannot now seek to ignore the said agreement of arbitration and to institute
this suit by bypassing and/or suppressing the said agreement or arbitration.
f) The present suit is liable to be
dismissed inasmuch as the existence of the arbitration clause in the said
agreement has been suppressed in the present suit.
16.
Inasmuch
as the subject matter and/or substance of the present suit is squarely within
the scope and ambit of the said arbitration clause, there exists no sufficient
reason as to why the subject matter and/or substance of the present suit ought
not to be referred to arbitration.
17.
The
defendant/applicant was and continues to be ready and willing to do all things
necessary for the proper completion of the arbitration.
18.
The
defendant/applicant has not yet submitted its first statement on the disputes
being the subject matter of the present suit and as such there is no impediment
in referring the substance and/or subject matter of the said suit to
Arbitration in accordance with the provisions of Section 8 of the Arbitration
and Conciliation Act, 1996.
19.
Unless
orders are passed as prayed for herein, the defendant/ applicant will suffer
irreparable loss, prejudice and injury.
20.
This
application is made bonafide and for the ends of justice.
In these circumstances, the defendant/ applicant
most humbly prays that your Honour for an order that:
a)
The suit
being Title Suit No. 2007 of 2025 be permanently stayed and/or dismissed;
b)
Alternatively
–The subject matter of the Title Suit No. 2007 of 2025 be referred to
Arbitration in terms of Section 8 of the Act;
c) Stay
of further proceedings of Title Suit No. 2007 of 2025 and all proceedings
thereunder;
d) Ad
interim order in terms of prayer above;
e) Costs of and/or incidental to this
application be paid by the plaintiff;
f) Such
further or other order or orders be passed and/or direction or directions be
given as to which this Learned Court may deem fit and proper.
And your applicant, as in duty bound, shall ever
pray.
AFFIDAVIT
I,Prithijeet
Das, Sonof___________________aged
about __ years, by faith Hindu, by occupation Service, working for gain at Cholamandam
Investment and Finanace Company Limited,5th Floor, 55/55/1,
Chowringhee Road, Chowringhee Court, Kolkata-700071 do hereby solemnly
affirm and say as follows:-
1.
That I am the Authorized Signatory of
the Defendant company and as such well acquainted with the facts and
circumstances of this case, from the records maintained by the Company.
2.
That the statements made in the
paragraphs 1 to of the foregoing
petition are true to my knowledge as per records maintained by the Company and
those contained in paragraph
thereof are my respectful submission before this Learned Court.
Identified
by me
DEPONENT
Advocate
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