Written Objection against Petition under Section 23 of the Protection of Women from Domestic Violence Act 2005 / PWDV Act 2005 / Domestic Violence

 

District : South 24 Parganas.

 

In the 5^th Court of the Learned Judicial Magistrate, at Alipore, South 24 Parganas.

 

                                                          AC Case no. 1063 of 2022

 

                                                          In the matter of :

Mumtaj Begam, Wife of Md. Fakruddin, Daughter of Sk. Mostakim of Village – Alampur, Biswas Para, Post Office – Bidhangarh, Police Station Rabindranagar, Kolkata – 700066, District South 24 Parganas,

                                                                   _________Aggrieved Person.

-      Versus –

 

Md. Fakruddin, Son of Late Md. Moin, of Village – Payalpur, English Pirpaintee, Bhagalpur, Post Office – Rifayatpur, Police Station – Barahat, District – Ishi, State – Bihar, India, Works for gain at : Murahara Railway Station, Eastern Railway, District – Banka, State Bihar, India, works as Gate Keeper,

_____________Respondent.

 

Written Objection by the Respondent Md. Fakruddin, against the application under Section 23 of the Protection of Women from Domestic Violence Act’ 2005, filed by the Aggrieved Person petitioner.

 

The humble petition on behalf of the Respondent most respectfully;

 

Sheweth as under :

 

1.           That the Respondent is in receipt of the notice under Section 13 of the Protection of Women from Domestic Violence Act 2005, with a copy of an application under Section 23 of the Protection of Women from Domestic Violence Act 2005, but without any document being relied on by the aggrieved person. Therefore the respondent is not able to answer on any alleged purported document, on which the aggrieved person ever relied on. The respondent is answering on the available alleged contention of the aggrieved person. The respondent reserved his rights to put comments and answer on any document while the same is placing with a copy to him by the aggrieved person, if needed and additional show cause in the nature of written objection would further placed in the present proceeding.

 

2.           That the petition under objection is not maintainable in fact. The petition under objection is not even acceptable in the given form. The petition of the aggrieved person is not on true state of affair. The petition under objection is not tenable either in fact or in the law. Thus the petition under objection is liable to be rejected at once, in the interest of administration of Justice.

 

3.           That the petition under objection is not maintainable in law.

 

4.           That the petition under objection is false, baseless, mala fide and an harassing one and the petitioner is put to strict proof thereof.

 

5.           That the Respondent beg to states that the purported Petition is speculative, harassing, motivated and barred by the Principles of Law and hence it is liable to be rejected at once.

 

6.           That the Respondent beg to states that the aggrieved person do not admit all allegations made in the application of the Aggrieved Person, to be true and save and except those that are specifically, admitted,  Respondent put the Aggrieved Person, to the Strict proof of the rest.

 

7.           That before dealing with the statements made in the petition under objection paragraph wise, this Respondent, states the following facts for Your Honour’s kind perusal :

 

a)    That the Aggrieved Person is refused to live with the Respondent. The Aggrieved Person is living with her ex-husband’s family. The Aggrieved Person having a Son from her ex-husband namely Md. Vasim, aged about 18 years, while she joined the respondent to live for the rest of her life. But She left at her own whim.

 

b)   That the Aggrieved Person is not a house wife, she is a working lady, and thereby she earns about Rs. 10,000/- per month being engaged in some small scale industry, so far.

 

c)    That the Aggrieved Person is living separately without sufficient reasons.

 

d)   That the Respondent is a married person with Bibi farzana and they have their two sons and two daughters. The aggrieved person knew such family arrangement of the respondent.

 

e)    That the aggrieved person is a lady having temper and culture and uses abusive languages day in and day out, she has become accustomed to torture the respondent with her over bearing ill manner.

 

f)     That the Respondent is a Group D employee in Eastern Railway and thereby earn Rs. 30,000/- per month and he has to maintain his first wife Bibi Farzana Begum, and two son’s namely Md. Caif and Md. Firdos, and two daughters Farana Begum and Anmol and his old aged ailing mother namely Jaibun Nisha, out of his such little meager earning. The Respondent is burden with maintaining Seven family members including himself. The Respondent has no other engagement to earn any money. The Respondent is totally engaged in his employment with Eastern Railway.

 

g)    That the Aggrieved Person and the Respondent are related as of the family member and they are well known to each other since last 20 years. The Respondent Md. Fakaruddin was early in relation with the aggrieved person Mumtaz Begum. The Ex-husband Md. Chand of the aggrieved person is cousin brother of the Respondent. The Respondent is a brother-in-law of the aggrieved person. Upon untimely death of the said Md. Chand, the aggrieved person solemnized 2^nd marriage with the Respondent, in the year 2017, in due performance of rituals of the Islam. Presently the aggrieved person is aged about 39 years. She have one Son from her earlier wedding, who is known as Md. Vasim.

 

h)   That the GT Chart concerning the aggrieved person and the respondent are as follows;

 

 

i)     That the respondent tried himself off and on to reconcile issues to take her and to restore his matrimonial life with the aggrieved person but this is the aggrieved person who on all of occasions refused and did not heed for such restoration of matrimonial life, in any manner, whatsoever.

 

j)     That the respondent do not have any immovable property in his name, as of now, and the respondent is presently unemployed. The Respondent have two number of family member being dependent on him as his Father and Mother having surviving their life in their old age. The Spouse of the respondent is not a dependent since She is earning herself through her Garment business and sufficiently accumulate her earning to run herself and for her livelihood.

 

k)   That the Respondent is all along victim as well as persons of suffering of mental and physical cruelty inflicted by the aggrieved person day by day, though the respondent tolerates such continuous cruelty of the aggrieved person as he preferred to continue as a healthy family,  but this the aggrieved person who all along ignore the morality of the respondent, the aggrieved person is not a housewife lady she never participate in house hold work of day to day, she treat and used her matrimonial house members as her servant and always dominate to instruct the respondent and the aggrieved person become perverse may be due to her mental illness, which she hide from the respondent.

 

l)     That   the aggrieved person is a cause of domestic violence upon the respondent, the respondent is innocent, as he never did cause any domestic violence on the aggrieved person, rather the respondent is victim of the domestic violence inflicted by the aggrieved person, herein.

 

m)  That the Respondent all along tried off and on to take back the aggrieved person but this is the aggrieved person who at her own whims refused to join her matrimonial tie with the respondent, however, Since, the Respondent was in belief that good sense will prevail on the aggrieved person, the respondent tried off and on but all in vain at the instances of the aggrieved person.

 

8.     That without waiving any of the aforesaid Objections and Facts and fully relying thereupon and without prejudice to the same. The Aggrieved person now deals with the specific paragraphs of the said Application in seriatim as hereunder.

 

9.     Save and except the statements made in the said application which are matter of record, the aggrieved person denies each and every allegations contained in the said application and calls upon the respondent to strict proof of the said allegations.

 

10.                       That with references to the statements made in paragraph nos. 1, 2, 3, and 4, of the application, the respondent deny and disputes each and every allegation made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.6, herein above. The Respondent states that the aggrieved person’s first marriage with Md. Chand in the year 2002, the said Md. Chand is now deceased. The said Md. Chand is Cousin Brother of the respondent. The aggrieved person gave birth of a male child being consummated with the said Md. Chand. The said male child of the aggrieved person well recognized as Md. Vasim. The said male child is attaining his age being major, and is well able to assist the aggrieved person in her engagement to earn thereby sufficiently. The Respondent denied that the respondent ever allured the aggrieved person being represented himself as a Motor Mechanic, and on such requisition the respondent ever married the aggrieved person. The respondent denied that he ever consummated at the parental residence of the aggrieved person in Kolkata. The respondent denied and put to the strict proof of the aggrieved person that the aggrieved person has ever paid any sum of money as of Rs. 5,00,000/- to the aggrieved person on any alleged pretext, so far.

 

11.                       That with references to the statements made in paragraph nos. 5, 6, 7, and 8, of the application, the respondent deny and disputes each and every allegations made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.6, herein above. The Respondent states that the aggrieved operson was well within the knowledge of each facts lying with the respondent, more particularly the knowledge of his marriage and the children thereby from the said marriage with Bibi Farzana Begum. The Respondent denied that after the marriage with the aggrieved person, she has ever treated with any cause of domestic violence. The respondent states that the aggrieved person has never been treated with any short of behavior which can be termed as torture by any family members of the respondent. The Respondent states that he never concealed any facts and circumstances with the aggrieved person. Since the aggrieved person is within family of the respondent and as she was married to cousin brother of the respondent, everything was open and visible to bare eyes. The respondent states that the GD Entry and the case lodged by the aggrieved person is on false and baseless allegations, therefore the respondent put to strict proof of the same to the aggrieved person. The Respondent denied the false allegation content in the paragraph number 8 of the application of the aggrieved person, and put to strict proof of the same to the aggrieved person. The respondent states that the bold abusive alleged languages in Bengali is awesome, since the respondent have no knowledge of Bengali languages. The respondent is not able to utter any word in Bengali language. The Respondent did never visit on the alleged occasion at Kolkata.

 

12.                       That with reference to the statements made in paragraph nos. 9, 10, and 11, of the application, the Respondent deny and disputes each and every allegations made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.6, herein above. The Respondent denied the content of the alleged complaint to the police by the aggrieved person and put to strict proof thereof. The Respondent states that an application for maintenance has already been initiated by the aggrieved person in the terms of Section 125 Cr.P.C. before the Learned 5^th Court of Judicial Magistrate, Alipore, South 24 Parganas, which is still pending. The said maintence case has registered ass ACM Case no. 517 of 2021.

 

13.                       That with reference to the statements made in paragraph nos. 12, 13, and 14, of the application, the Respondent deny and disputes each and every allegations made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.6, herein above. The Respondent denied that he drew any salary from the Eatern Railway amounting to a sum of Rs. 41,000/- per month, and besides having garage business from earning an additional sum of Rs. 30,000/- per month besides having pucca houses, cultivated landed property and thereby earing around a sum of Rs. 90,000/- to 1,00,000/- per month. The Respondent states that he is a Group D Employee in Easter Railway. He is not engaged in any other occupation. The Respondent do not have any immovable property either in his name or in the name of his any family members. The dwelling house of the respondent is a joint ancestral property with the other family members being co-sharer in such ancestral property. The respondent do not have ever enjoined into any other ancestral property apart from the dwelling house. The respondent have earning of Rs. 30,000/- being salary withdrawing from the Eastern Railway. The Respondent do not have any other source of earing. The Respondent accommodating his six numbers of family members in such meager earning from his employment in the Eastern Railway. The aggrieved person is a working lady and thereby she earing sufficiently to run her livelihood and need of day to day life. The aggrieved person is not in need of anything though demanding money on false and fabricated pretext and on basis of her concocted and after thought stories. The aggrieved person failed to produce any document in support of her contentions raised against the respondent in her alleged petition. The aggrieved person’s application is not maintainable and she is not entitled to get any relief in terms of her prayer, in the interest of administration of Justice.

 

14. That the aggrieved person is not entitle to get any relief as prayed by her in an application under Section 23 of the Protection of Women from Domestic Violence Act’  2005.

 

15. That the Respondent beg to state that there is no cause of action and or accrual of cause of action, to bring this present proceeding by the aggrieved person against the respondent, herein, whatsoever in any manner.

 

16. That the Respondent beg to states that the Respondent is a victim of cruelty, torture, and desertions caused by the aggrieved person, continuously.

 

17. That thereafter the respondent herein tried himself off and on to reconcile issues to take her and to restore his matrimonial life with the aggrieved person but this is the aggrieved person who on all of occasions refused and did not heed for such restoration of matrimonial life, in any manner, whatsoever.

 

18. That the respondent herein do not have any immovable property in his name, as of now, and the respondent herein is a under no other employment and thereby acquiring no earning, save and except earning from the Eastern Railway.

 

19.                       That the Respondent is all along victim as well as persons of suffering of mental and physical cruelty inflicted by the aggrieved person day by day, though the respondent tolerates such continuous cruelty of the aggrieved person as he preferred to continue as a healthy family,  but this the aggrieved person who all along ignore the morality of the respondent, the aggrieved person is not a housewife lady she never participate in house hold work of day to day, she treat and used her matrimonial house members as her servant and always dominate to instruct the respondent and the aggrieved person become perverse may be due to her mental perverse thoughts, which she hide from the respondent.

 

20.                       That   the aggrieved person is a cause of domestic violence upon the respondent, the respondent is innocent, as he never did cause any domestic violence on the aggrieved person, rather the respondent is a victim of the domestic violence inflicted by the aggrieved person, herein.

 

21.                       That the Respondent all along tried off and on to take back the aggrieved person but this is the aggrieved person who at her own whims refused to join her matrimonial tie with the respondent, however, Since, the Respondent herein was in belief that good sense will prevail on the aggrieved person, the respondent herein tried off and on but all in vain at the instances of the aggrieved person.

 

22. That since no documents has been served with the said purported petition, the respondent is unable to put forward any comments thereon, and therefore seeks to get a copy of documents and or papers relied upon by the aggrieved person, if any, and on getting such documents and or papers, the respondent place his additional written objections thereof, in the interest of administration of justice.

 

23. That the application of the aggrieved person is not maintainable in any form of law, in the present proceeding before the Learned Court, therefore the respondent seeks to get dismissal of such application of the aggrieved person at once with exemplary costs thereof, in the interest of administration of justice.

 

24. That the present written objection is made bonafide in the interest of administration of justice.

 

It is therefore prayed that your Honour would graciously be pleased to allow this written objection/ Show Cause of the respondent and to reject and or to dismiss the application of the aggrieved person herein, in the interest of administration of justice, and or to pass such other order or orders as your Honour may, deem, fit, and proper for the end of justice.

 

And for this act of kindness, the Petitioner, as in duty bound shall ever pray.

 

VERIFICATION

 

I, being the Respondent herein, do hereby solemnly state and declare that the statements made in the foregoing paragraphs are true to the best of my knowledge and belief and I sign this verification on this the ______day of ____________’ 2022, at Alipore Criminal Court premises.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

I, Md. Fakruddin, Son of Late Md. Moin, aged about _______years, by faith Muslim, by Occupation Service, residing at Village – Payalpur, English Pirpaintee, Bhagalpur, Post Office – Rifayatpur, Police Station – Barahat, District – Ishi, State – Bihar, India, Works for gain at : Murahara Railway Station, Eastern Railway, District – Banka, State Bihar, India, works as Gate Keeper, do hereby solemnly declare and affirm as follows :

 

1. That I am competent to swear this affidavit, and I am respondent in the present proceeding, before the Learned Court.
2. That I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my Written Objection / show cause.
3. That the statements as made by me in the foregoing paragraphs in the written objection/ Show Cause are true to the best of my knowledge and belief.

 

That the above statements are true to the best of my knowledge and belief.

 

 

 

 

DEPONENT

Identified by me,

 

Advocate.

Prepared in my Chamber,

 

Advocate

Date : __________________2022.

Place : Alipore Criminal Court

NOTARY

 

 

 

Written Argument in Arbitation Case / Arbitration Case / Arbitration and Conciliation Act 1996 / Commercial Court

 

District : South 24 Parganas

In the Court of the Learned Commercial Court

ALIPORE

South 24 Parganas.

 

I.A. no. 01 of 2022

Misc. Case ( Arbitration )  no. 24 of 2022

 

 

                                                In the matter of :

Sri Aniruddha Guha Roy,                                                        ______Applicant

-      Versus –

 

Aditya Birla Finance Limited, and Others             ________Respondents

 

 

Written notes of argument by the applicant

 

 

FACTS :

 

 

1.   The Loan Agreement dated 28^th day of February’ 2019, for Loan Account no. ABFLKOLLAP0000046077, and Loan Account no. ABFLKOLLAP0000046117, has been executed between the Respondents and the applicant at Kolkata, the Non-Judicial Stamp Papers has been purchased and agreement engraved by the Respondents in Kolkata.

 

2.   The applicant all along abode in the City of Kolkata, carrying his business activities in Kolkata. The applicant persists his all activities of his livelihood in the City of Kolkata. The Loan Account and the Bank account are all in the Branches of the Respondents in the City of Kolkata.

 

3.   The said Loan has been granted against the Residential properties, which are in the City of Kolkata, under the jurisdiction of the South 24 Parganas District. The immovable property of the applicant situated and lying in the City of Kolkata.

 

4.   All the activities on the part of the Respondents and on the part of the applicant has been duly performed in Kolkata in respect of granting and repayment of the said loan account, between the parties herein.

 

5.   The applicant placed his application under Section 9 of the Arbitration and Conciliation Act 1996, before the Hon’ble District South 24 Parganas and placed his application for adinterim protection on the immovable property, which are lying and situate in the City of Kolkata under District South 24 Parganas, on 22^nd day of February’ 2022. The Hon’ble Court was pleased to grant ad-interim injunction on the immovable property of the applicant. The same has been duly communicated to the Respondents in terms of the direction of the Hon’ble District Judge, South 24 Parganas.

 

6.   The Respondent preferred an appeal before the Hon’ble High Court Calcutta, vide F.M.A.T. 75 of 2022 { Aditya Birla Finance Limited – Versus – Aniruddha Guha Roy }, challenging the Order dated 22^nd February’ 2022, passed in the present proceeding. The Hon’ble High Court Calcutta upon necessary hearing passed the Order dated 17-03-2022. The operative portion of the said Order dated 17-03-2022, passed in F.M.A.T. 75 of 2022, by the Hon’ble High Court Calcutta is reproduced herein as follows :

 

“We set aside the order dated 22^nd February, 2022 and direct the learned court below to consider the interim application afresh at the “Motion” stage upon notice to the appellant / respondent and dispose of the same by a reasoned order after considering the contention of the parties.

          We enumerate three of the contentions raised by Mr. Debnath Ghosh, learned advocate appearing for the appellant / petitioner.

          The first is that the learned court below had no jurisdiction by virtue of the forum selection clause contained in the agreement between the parties.

          Secondly, the subject matter of dispute was commercial in nature and that for this reason the learned court below had no jurisdiction.

          Thirdly, the respondent had initiated steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in respect of the property which is the subject matter of the Section 9 application under the Arbitration and Conciliation Act, 1996; as a result of which the learned court below had inherent lack of jurisdiction to entertain and try the dispute.”   

 

7.   By the said Order dated 17/03/2022, the Hon’ble High Court Calcutta directed for the hearing a fresh on jurisdiction issues raise by the respondents herein by the Learned Court.

 

8.   Pursuant to the said Order of the Hon’ble High Court, the Hon’ble District Judge, discussed rival contentions on the above three questions on maintainability raised by the respondents and found satisfied that the alleged disputes are “commercial disputes” within the meaning of Section 2( c) of the Commercial Court Act 2015, and therefore accordingly directed for transfer of the said Arbitration Case before this Hon’ble Commercial Court for adjudication vide Order dated 22-04-2022.

 

ARGUMENT

 

I)             In answering the first is that “the learned court below had no jurisdiction by virtue of the forum selection clause contained in the agreement between the parties” –

 

a)   when there is a conflict between the forum selected by the parties and the seat of arbitration, in the case of a domestic arbitration, then, the forum selection clause will prevail. The applicant has relied upon Section 2(2) and Section 9 of the Act of 1996. The seat of arbitration and the venue of the arbitration are concepts borrowed from International Arbitration Law. The applicant relied upon 2013 Volume 9 Supreme Court Cases 32 (M/s. Swastik Gases P. Ltd. v. Indian Oil Corp. Ltd.), 2017 Volume 7 Supreme Court Cases 678 (Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited), 2020 Volume 5 Supreme Court Cases 399 (Mankastu Impex Private Limited v. Airvisual Limited), 2020 Volume 5 Supreme Court Cases 462 (Brahmani River Pellets Limited v. Kamachi Industries Limited) and the order dated November 17, 2020 passed by the Delhi High Court in Arbitration Petition No. 328 of 2020 (Cars 24 Services Pvt. Ltd. v. Cyber Approach Workspace LLP) in support of contentions.

 

b)   The applicant relied on the Judgment dated January 21, 2021, passed in AP 399 of 2020 { Bowlopedia Restaurants India Limited – Versus – Devyani International Limited } by the Hon’ble Justice Debangsu Basak, High Court Calcutta, wherein in the similar circumstances, the Hon’ble Justice hold that the Court in Kolkata have inherent jurisdiction to try and grant interim relief to the applicant.

 

c)    The following are the Judicial references relied on by the applicant in answering first queries raised by the respondents :

 

i)             AP 399 of 2020 { Bowlopedia Restaurants India Limited – Versus – Devyani International Limited } by the Hon’ble Justice Debangsu Basak, High Court Calcutta, Order dated January 21, 2021;

 

ii)           2013 Volume 9 Supreme Court Cases 32 (M/s. Swastik Gases P. Ltd. v. Indian Oil Corp. Ltd.),

 

iii)          2017 Volume 7 Supreme Court Cases 678 (Indus Mobile Distribution Private Limited v. Datawind Innovations Private Limited),

 

iv)          2020 Volume 5 Supreme Court Cases 399 (Mankastu Impex Private Limited v. Airvisual Limited),

 

v)            2020 Volume 5 Supreme Court Cases 462 (Brahmani River Pellets Limited v. Kamachi Industries Limited)

 

II.           In answering Thirdly, the respondent had initiated steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in respect of the property which is the subject matter of the Section 9 application under the Arbitration and Conciliation Act, 1996; as a result of which the learned court below had inherent lack of jurisdiction to entertain and try the dispute.”

 

a)   The third issues are not bar under Section 9 of the Arbitration and Conciliation Act 1996, in context of granting any interim relief to the applicant more particularly giving interim protection over the immovable property of the applicant restraining the respondent and its men, agent and representatives from taking physical possession of the immovable property of the applicant as described in Schedule – “A” in the application, and or restraining the respondent from transferring and or disposing of and or encumbering and or creating any third party interest and or parting with any part or portion of the piece or parcel of the possession of the immovable property of the applicant as described in Schedule – “A” in the application,  till the disposal of the application, under Section 9 of the Arbitration & Conciliation Act’ 1996.

 

b)   The Arbitration and Conciliation Act 1996 cannot now resort to the SARFAESI Act for making any recovery against the applicant as the Arbitration and Conciliation Act is an alternate procedure prescribed by law and Section 5 of the Arbitration and Conciliation Act provides for the Act to be complete code in itself.

 

c)    In view of the present application before the Learned Court, there is no amount which can be recovered from the applicant as a loan under the original agreement and therefore, Section 2(g) of the Debt Recovery Act and equally Section 2(1)(ha) of the SARFAESI Act would not be applicable.

 

d)   In view of the Full Bench Judgment in HDFC Bank Limited – Versus – Satpal Singh Bakshi 2012 SCC Online Del 4815, which provided for arbitration agreement in the loan agreement, the matters which come within the scope and jurisdiction of Debt Recovery Tribunal are arbitral and therefore once having invoked arbitration, the respondent cannot fall back on the procedure prescribed under the SARFAESI Act or under the Debt Recovery Act for making recovery under the original loan agreement.

 

e)    In view of the Supreme Court Judgment in M.D. Frozen Foods Exports Private Limited and Ors. – Versus – Hero Fincorp Limited AIR 2017 SC 4481, which discussed the interplay between the SARFAESI Act and the Arbitration Act and thus the relevant paragraphs 30 onward of that judgment where the question no. 3, framed by the respondents in the present proceeding was answered, reproduced as follows :

 

“30. The only twist in the present case is that instead of the recovery process under the RDDB Act, we are concerned with an arbitration proceeding. It is trite to say that arbitration is an alternative to the civil proceedings. In fact, when a question was raised as to whether the matters which came within the scope and jurisdiction of the Debt Recovery Tribunal under the RDDB Act, could be referred to arbitration when both parties have incorporated such a clause, the answer was given in the affirmative. That being the position, the appellants can hardly be permitted to contend that the intiation of arbitration proceedings would in any manner, prejudice their rights to seeks relief under the SARFAESI Act”.

 

f)     The provision s for the SARFAESI Act are thus, a remedy in addition to the provisions of the Arbitration Act. In Transcore Versus Union of India & Anr, it was clearly observed that the SARFAESI Act was enacted to regulate securitization and reconstruction of financial assets and enforcement of security interest and for matters connected therewith. Liquidation of secured interest through a more expeditious procedure is what has been envisaged under the SARFAESI Act and the two Acts are cumulative remedies to the secured creditors.

 

g)    Therefore it has been persistently held that the arbitration proceedings and SARFAESI Act proceedings can go hand in hand. It has held that the provisions of SARFAESI Act are remedy in addition to the provisions of the Arbitration Act. The two Acts are cumulative remedies to the secure creditors. While SARFAESI Act proceedings are in nature of enforcement proceeding, the arbitration proceedings would be in form of an adjudicatory process.

 

h)   As the SARFAESI Act and the Arbitration are held to be complementary in nature and the doctrine of election has been held to be not applicable, it cannot be said that if a party has invoked one remedy, it is debarred from invoking the other during the pendency of the first one.

 

i)     The following are the Judicial references relied on by the applicant in answering third queries raised by the respondents :

 

a)   HDFC Bank Limited Versus Satpal Singh Bakshi 2012 SCC Online Del 4815;

 

b)   M.D. Frozen Foods Exports Pvt. Limited and Ors. Versus Hero Fincorp Limited AIR 2017 SC 4481;

 

c)    Transcore Versus Union of India & Anr. ,

 

 

III.         The Second issues as raised as the subject matter of dispute was commercial in nature and that for this reason the learned court below had no jurisdiction. In answering the queries the applicant relied on a Judgment in D.M. Corporation Pvt. Limited Versus The State of Maharashtra and Ors. (2018(4) MHLJ 457), where it has been held that “if the Subject matter of arbitration is a “Commercial disputes” of a “specified value”, the Commercial Court will alone have the jurisdiction to entertain an application under Section 9 of the Arbitration Act”.

 

a)    That Section 10 sub-clause 3 of the Commercial Courts Act can be reproduced for ready reference as under:

 

"10. Jurisdiction in respect of arbitration matters - Where the subject-matter of an arbitration is a commercial dispute of a Specified Value

and-

(1) ... ... ...

(2) ... ... ...

(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted."

 

b)   That Section 15 of the Commercial Courts Act further provides for transfer of pending suits and applications, including applications under the Arbitration and Conciliation Act, 1996, relating to Commercial disputes of a 'specified value' to the Commercial Court. Relevant sub-clause of Section 15(2) reads as follows:

 

"15. Transfer of pending cases –

(1) ... ... ...

(2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court: Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub- section (2).

 

c)    That the following are the Judicial references relied on by the applicant in answering Second queries raised by the respondents :

 

D.M. Corporation Pvt. Limited Versus The State of Maharashtra and Ors. (2018(4) MHLJ 457);

 

PRAYER :

 

a)    That in the facts and in the Law, the present proceeding has sufficiently have territorial jurisdiction and the action of the respondents under SARFAESI Act 2002 does not debar the present proceeding to adjudicate to decide the interim application placed by the applicant, in the interest of administration of Justice.

 

b)   That unless this Learned Court passes the order / orders, as prayed for hereinafter, the respondents shall suffer irreparable loss and injury.

 

c)    That the preponderance of balance of convenience and / or inconvenience is in favour of passing the order or orders as prayed for hereinafter.