Arun Kumar Singh v. State of NCT Delhi & Ors.

1. This is an appeal filed by the appellant against the judgment dated 8.11.2011 passed by the learned ADJ in CS No.232/2010 titled Sh.Arun Kumar Vs. Ms. Amba Leasing and Finance Company & Ors. by virtue of which the objections of the appellant under Section 34 of the Arbitration and Conciliation Act, 1996 for setting aside the ex parte arbitral award dated 31.10.2009 was dismissed.

2. Briefly stated the facts of the case are that the appellant is an auto driver by profession and in the month of February, 2007, he purchased a second hand three wheeler bearing registration no. DL- 2013:DHC:1242 1R-G 9576 from one Chander Prakash. He had taken a loan from the respondent no.2 herein and the said loan was to be paid in terms of the agreement dated 17.2.2007 between the appellant and the said respondent.

3. The appellant defaulted in payment of loan. The respondent no.2 invoked the arbitration clause in the agreement and got an arbitrator appointed.

4. The learned Arbitrator issued notice to the appellant who did not appear before the learned Arbitrator and he was proceeded ex parte and an ex parte award was passed on 31.10.2009.

5. The award was challenged by the appellant before the learned ADJ in CS No.232/2010. It was stated that that the principles of natural justice were not followed as he was not served. The learned Court sent for the record of the arbitrator and noted that the address bearing No.S-184/219, New Sanjay Camp, Okhla Industrial area Phase-I, Delhi, was the address shown in the objections at which notices were sent to the appellant. It was duly proved before the Arbitrator that the notice was sent to the appellant, at the said address and the court decided the objections and came to a conclusion that the appellant had been duly served but he had purposely not chosen to appear before the Arbitrator with a view to delay the disposal of the matter.

6. The learned ADJ dismissed the objections of non-service of the appellant vide order dated 8.11.2011 after satisfying that the appellant was duly served and he was deliberately keeping away from the proceedings. It was also recorded that sufficient and ample opportunities were given to the appellant to appear before the Arbitrator.

7. Still feeling dissatisfied, the appellant has filed the present appeal under Section 37 of the Arbitration and Conciliation Act, 1996.

8. The main contention of the learned counsel is that the principles of natural justice have not been followed.

9. The second contention which is raised by the learned counsel is that the agreement was a fabricated document and thirdly, he had paid money to one Hariom and liquidated the entire amount. It is further stated that he had already lodged an FIR against Hariom, which is pending investigation.

10. I have carefully considered the submissions and gone through the order passed by the courts below rejecting the objections.

11. So far as the question of non-service of the appellant is concerned, this has been disbelieved by the courts below by holding that he was duly served and he deliberately chose to avoid appearance before the Arbitrator to stall the proceedings. If he has chosen to be away despite service, then he has done so at his own peril. The court cannot come to the rescue of a person who for no cogent reasons tries to keep away from the processes of law and later on chooses to participate in the proceedings at his own will, therefore, it is totally wrong that the appellant was not at all served.

12. So far as the agreement on the basis of which the claim was lodged by the respondent having been fabricated is concerned, it has not been proved by the appellant before the courts below. The objection of the appellant was that the agreement is a forged document. The basic principle of law of evidence is that ‘one who asserts must prove’.

13. Since in the instant case, the appellant was alleging that the agreement was forged and fabricated, essentially the burden of proof was on him to prove that the agreement was forged and fabricated. He has failed to do so. It is too late for the day to contend that the agreement is forged and fabricated.

14. So far as the third objection with regard to the payment having been made to one Hariom is concerned against whom the appellant has lodged an FIR for the offence of cheating etc., that is of no significance because if at all there is a dispute between Hariom and him that is to be sorted between them. Hariom is not a party to the present dispute. It is for the appellant to prosecute the matter and ensure that the guilty is brought to book, so far as allegations of cheating against him are concerned. Merely because there is an FIR registered against a third person, it will not be a ground for suspecting the proceedings conducted before the learned Arbitrator.

15. I prima facie, find that this appeal itself is misconceived and accordingly, the same is dismissed. No order as to costs. V.K. SHALI, J. MARCH 06, 2013 RN