Trivedi and Parashar (Advocates and Solicitors)
FIRM UPDATES -
ARBITRAL AWARD SET ASIDE IN A PETITION FILED U/S 34 OF THE ARBITRATION & CONCILIATION ACT, 1996 WHEREIN A CONSIDERABLE DELAY OF OVER 1,000 DAYS OCCURRED IN THE FILING THE
The Ld. Commercial Court, District Court of Saket, New Delhi has set aside the award u/s 34 of the Arbitration & Conciliation Act, 1996 passed by Ld. Sole Arbitrator against the Petitioner. The Petitioner represented by the Firm was an innocent Home Buyer who had purchased an apartment unit from Mantri Developers Private Limited, a mammoth Real Estate Developer situated in Bangalore, Karnataka. At the time of execution of sale, the Developer, PNB Housing Finance Ltd. (PNBHFL) and the Petitioner entered into a Tripartite Agreement wherein the Developer agreed to pay the EMIs on behalf of the Home Buyer to PNBHFL.
However, the Developer failed to deliver the apartment unit within the prescribed time which resulted in shifting the burden of loan repayment onto the innocent Home Buyer which was contrary to the Tripartite Agreement. Thereafter, PNBHFL issued a loan recall Notice and unilaterally appointed a Sole Arbitrator without duly serving proper Notice to the Petitioner. The Petitioner was proceeded ex-parte by the Ld. Sole Arbitrator and was held severally liable to repay the outstanding amount of loan. Aggrieved by the award passed by the Ld. Sole Arbitrator and having no knowledge of the said proceedings, the Petitioner approached the Hon’ble Court after a delay of over 1,000 days. Mr. Shantanu Parashar, Managing Partner assisted by Mr. Yash Saini, Senior Associate made compellingly arguments before the Court that the Petition was filed within the limitation period, placing reliance upon the judgements passed by the Supreme Court in 'Union of India vs. Tecco Trichy Engineers & Contractors' [(2005) 4 SCC 239] and 'State of Maharashtra vs. Ark Builders Pvt Ltd [(2011) 4 SCC 616,] which held that if the Petitioner dispute the receipt of the Notice invoking arbitration, it is the Respondent who bears the burden of proving proper intimation of notice to the concerned party. Consequently, the Court was satisfied that the award cannot be sustained and is therefore, set-aside.
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